1828254 (Refugee)

1828254 (Refugee) [2022] AATA 3001 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Joshua Le Vay
CASE NUMBER: 1828254

COUNTRY OF REFERENCE: Iran
MEMBER:Rodger Shanahan
DATE:4 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 August 2022 at 2:40pm
CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – nationality – stateless – religion – rejecting Islam – detention – unpaid wages – health care – mental health issues – illegal departure – Iraqi or Iranian citizenship – returned asylum seekers – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
EFP19 v Minister for ICMSMA (2021) FCCA 1508
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 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 stateless, applied for the visa on 29 September 2016.
The applicant appeared before the Tribunal on 25 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kurdish and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 Statement dated 21 September 2016
The following is only a summary of my claims for protection. It is not an exhaustive statement of the reasons why I cannot return to my country of origin. If there are discrepancies between my invalid PTAC application and the following it is because I have received multiple shock treatment therapies and I take medication to stabilise my mood. This causes me to have very poor memory recall. I am tired and feel very anxious about my life.
I am a stateless Faili Kurd. I do not have a right to citizenship or a right to reside in any country. Although I was born a Shia Moslem, I no longer practice any religion. I have no identity documents as I am stateless. None of my family have ever had any documents.
I was born on [date], [Town 1 in] Ilam Province, Iran. I am not sure this is the correct date of birth because I have no birth certificate. This is when my mother says I was born. I grew up in [a named] village. It is about 20 or 25 minutes away from [Town 1] by car. We lived in a tent.
There would be anywhere between 30 to 50 families living like this in our village. People would come and go. It was in the north of Iran about [distance] from the border of Iraq. The area around where we lived was mainly used for farming livestock.
My parents were expelled from Iraq around 1980 under the Saddam Hussein reg me because they were Faili Kurdish Shi'ite Moslems. From this period my family and I were denied rights as a national in either Iraq or Iran. My father died when I was about [age] years old. He had scars all over his body from the torture he received in Iraq from the authorities. His wounds became infected and he was unable to receive effective medical assistance because he undocumented.
I now suffer from anxiety. The last time I spoke to someone from my family was three years ago. I contacted my older brother [named] when I got out of immigration detention centre sometime in early 2012. He told me my mother was no longer alive. I do not know the date of her death. She had a heart problem but she could never receive the proper treatment because as stateless Faili Kurds we had not access to medical services.
I cannot get through to my brother on the same number I used three years ago. I have no idea where my brothers and sisters are living or if they are alive or dead. Every time I seek help I am given more medication or given shock therapy. This has made it very difficult for me to concentrate for long periods. I end up getting headaches very easily cannot recall everything that has happened to me over the years.
As an undocumented Faili Kurd living in Iran, life was so difficult it became unbearable. My livelihood was threatened on a daily basis. All my life I was abused and discriminated against. I lived in constant fear of being detained and tortured by the Iranian authorities. I had no basic human rights, no education and no access to adequate health care. I had no future hope.
My mother raised myself and my brothers and sisters. My brothers and [one] sister and me all started working at an early age. I had started working even before my father died. Money I earnt I would give to him to help cover the costs of medication he needed. It was also used to help to provide for the rest of the family to buy clothes and food.
As a child, I started working on different farms around the village where we lived. I used to shepherd sheep and goats as well help harvest the crops including vegetables, wheat and barley. The work I did was always hard labour. I worked very long hours. People in trucks would come in the early morning and collect all the kids from the village and take us to the farms. They wouldn't return us at night. We had to walk home which would take about an hour. We would be tired and hungry.
The work was never permanent. It was seasonal sometimes lasting a month. As I got older I also worked on construction sites doing general labouring tasks. This was also not permanent work. There was never a contract and I was completely open to exploited by the employer. Sometimes the Basij would turn up to the workplace an we would have to drop everything and run away and hide so they wouldn't arrest us We always had to be on the alert.
Often I would not get paid for a whole month's work. I would also only get half of was entitled to and what Iranians are paid in the same work. As an undocumented Faili Kurds though I could not complain. We were being employed illegally and so we had complained we would be in even more trouble. The authorities would have detained us and beaten us and made us pay bribes.
Most of the farms were owned by Iranian citizens. The Iranians would yell and swear at us. They would take advantage of us because they knew we couldn't complain needed the work to survive. They had no feelings about treating us like animals. Once I had a fight at work with an Iranian. He was goading me, making me lose my temper. I was about 18 years old. This person swore to me and put my mother and my sister down. I couldn't accept my sister or my mother being abused. I have some dignity. After we fought he made a complaint and I was taken away by the Basij to their base. I was locked away for one week. The Basij would come and beat me and not provide me with any food. They would wet the floor of the cell where I was kept so I couldn't lie down and sleep. I was not given any bedding to sleep on. There was a toilet in the cell but no toilet paper. The room stank.
After a week of this before they let me go they threatened me and told me that I should be careful next time I had a fight with a Persian. I was not paid for that month's work. The next time I was taken away by the Basij it was because I had complained to my employer about not getting paid properly. I was working in construction as a labourer on a building site. This time I was detained for three days. They beat me regularly using a stick or they kicked and punched me. They took whatever money I had on me and ag in my employer did not pay me for a month as punishment for trying to stand up for myseIf.
On another occasion I tried to talk to someone I was working for about not getting paid properly, this was when I was breaking bricks to make walls. It was very hard work. That night the Basij came and set my family's tent alight. It was burnt half away. I was about 19 years old when this happened.
After this I avoided making complaints. I kept a low profile so the authorities would at find me and cause problems. There were times when I would not leave the village as I was frightened of being taken away again. Without documents you live every day in fear of being caught by the authorities.
I was never able to attend school because I had no documents. When I was about 7 years old a person came and visited my brothers and sisters and I in our tent. They taught us once a week for about an hour. This was only for about 2 months.
I have never formally learnt to read or write. I only speak a small amount of Farsi and I don't read or write in that language either. Since I have been in Australia I have been trying to learn to speak, read and write in English. I regularly attended English classes when I was in immigration detention. I am gradually developing some basic literacy kills now as a result.
In Iran, as an undocumented Faili Kurd the only way you can access health care if you were sick was by seeing someone who would over charge you for their help. It was 'ta proper doctor but someone who would come to the village, like a nurse. He would have medication with him but you had to pay double for it if you needed it. We otherwise ad no access to professional doctors. Without documents we were not able to attend hospital.
I also cannot get married in Iran because of having no documents. Undocumented Faili Kurds sometimes marry among themselves but this doesn't give them any greater rights. If I have any children they too will be born stateless and grow up condemned to the s me discrimination and abuse I have been subject to my entire life.
I had no hope of a future of any sort in Iran. It is impossible to live in a country where I am at risk every day of my life. It is impossible to earn a sustainable living. I have no country and no citizenship. I had to leave Iran to save my life. I have never committed an offence. I have never down anything wrong to anyone else but I have lived a life time of being treated worse than an animal. This has caused me deep psychological and emotional harm. I am still struggling to come to terms with all I have endured since a child.
I left Iran after I worked very hard saving as much money as I could. My sister and brother also gave me some money. I could not bear to live a life of such depravation any Ionger. I flew to Indonesia via [another country]. From there I caught a boat which was intercepted by Australian Navy. I was taken to Christmas Island [in] November 2011.
I fear being continually abused and prevented from being able to earn a living by Iranian nationals and the authorities if I return to Iran. As an undocumented Faili Kurd I do not have a right to return to Iran. I also believe would face a real chance of being executed because I left Iran illegally and used documents if forcibly returned.
In Iran the Basij and the Sepah made my life unbearable. They never helped me, they only ever threatened me and harmed me. I also have no documents that would enable me to live in Iraq. Nor do I have any family there. I would be denied the same basic rights in Iraq as I have been denied in Iran. I fear that if I was sent to Iraq they would deport me to Iran. In Iran I fear I would be deported me to Iraq. Both of these countries do not accept Faili Kurds.
The Iranian authorities do not protect undocumented Faili Kurds. We have no rights so they take advantage of this and abuse us and make it impossible to survive.
The Iranians do not like the Kurdish people. We are not allowed to wear our traditional dress or practice our culture. They do not want us to be become strong enough to exert our basic rights. They believe we are opposed to the Iranian government.
I am also no longer a Shia Moslem. In Iran I would have to pretend to believe in something I don't and publicly be seen to attend to all the rituals. If my lack of faith is discovered I will be at risk of being executed as this is punishable by the death sente
The Iraqi and Iranian governments will continue to deny me a right to citizenship a right to remain legally in their countries. I believe that I will not even be permitted to return to either Iraq or Iran as both countries reject Kurds.
As an undocumented Faili Kurd I am not able to travel outside of Ilam Province. If discovered I am undocumented I can be arrested by the authorities anywhere in Iran have no rights so I am at risk of being seriously harmed while in custody or being m to pay bribes. Before seeking asylum I had never left Ilam Province.
AAT Hearing
The following is a copy of the hearing transcript that has been lightly edited to make t more readable:
Mr Adviser I don’t have any submission from you. Should have I expected one or there is no prehearing submission?
REP: There is no prehearing submissions, in fact I had difficulty contacting the applicant but there is no prehearing submission.
M: There was going to be a prehearing medical report. The date to be determined. Is there a date determined on that?
REP: Member I have tried repeatedly to try to obtain the report from the applicant’s GP. I have tried again this morning to get something meaningful out of them, I still have not been able to obtain a report. But they have said they will be preparing a report and I apologise for not having the report in advance to the hearing.
M: Any timeframe on that?
REP: I’ve been seeking a timeframe, I have not been given one. I will keep endeavouring to obtain one to get a report as soon as possible.
M: Alright, we will proceed then.
M: Now I have had a letter from the Psychiatrist from Queensland, who is your treating Psychiatrist and the letter was dated 2018. Are you currently undergoing any mental health treatment?
A: No.
M: When did you leave Queensland and come to Melbourne?
RA: More than two years ago.
M: Why did you move to Victoria?
RA: I didn’t have any friends or anyone to socialise with in Queensland. So my friend he moved to Victoria, so I moved here in order socialise with some people. I found it better.
M: Where are you living and who are you living with in Victoria and are you working?
RA: Yes, I am working with a friend as [an Occupation 1]
M: And where do you live?
RA: [Suburb 1].
M: Is that a suburb?
RA: It is a new suburb.
M: And who do you live with?
RA: I live with a friend his name is [Friend A].
M: Is that another Iranian friend?
RA: He is Kurdish.
M: From where?
RA: Iranian Kurdish.
M: Did you know him in Iran before you came here or did you meet him in Australia?
RA: Ages ago we used to work together in a factory in [Town 1] in Queensland. I know him from there.
M: Is there any medical reason why you can’t attend this hearing today?
RA: I don’t know what is my problem because they give me too much tablets, too much injections I don’t know what’s going on, no really. I’m confused.
M: Ok, are you undergoing any mental health treatment at the moment?
RA: No because they send you to hospital and you will you know, be numbed and you will be some issues so no I didn’t go so far there.
M: So you are not under any mental health treatment plan since you have moved to Victoria?
RA: Yes, I didn’t attend any mental health clinic/place but I got an appointment they asked me to attend but they said no, I am not able to attend because you will harmed me.
M: When was that?
RA: Precisely, I don’t remember, but it was more than a year ago but less than two years. I mean more than a year.
M: Okay, so can you tell me just very briefly what serious harm you will fear if you return to Iran. Just one or two sentences tell me what you think will happen to you, who will do it to you and why they would do it to you.
RA: It is unknown what will happen to you, who is waiting for you, they are going to torture you and they are going to harm you. It is really unknown. Unknown because its like an uncertainty if you go back. I will be harmed. I don’t know who, how and where.
M: Okay, why? Why will you be harmed?
RA: Actually, I will be harmed physically for many reasons. First reasons how you get out of the country. Second reason, how you are a stateless Kurdish Faili you got documents and left the country. Third thing, I will be harmed because they said look you were overseas in another country and you talked against our country so you betray our country and you should be punished for this one. Even the Iranian leader they said those people in the another country asking for asylum seeker or other (30:45 inaudible) they should be punished. They should be killed. According to the leader of Iran.

M: Okay. So you are saying that you may be harmed because the way you left the country because you have spoken against the country since you have been out of Iran and because you are a stateless Faili Kurd. Is that correct?
RA: actually the two reasons you know that I will be persecuted if I go back to Iran is I left that country overseas, another country and a western country that country I fought against the country because you know, I ask for help from that country and the second reason which is a bit on that first one, because I am Kurdish Faili I left the country, the way you left the country and believe me believe me , if you go and ask it is not only me I am only one of the thousand people, and they harm him because they think we betray the country and the charge will be prison because we betray the country and you can go to this ghetto and ask what I’m saying.
M: Ok, do you have any other reasons or are those the only reasons?
RA: My main fault, my main crime is because I’m a Kurdish, I have no right to live.
M: Now lets just look at your claim to be a stateless Faili Kurd. Can you just tell me your family background and what you’ve done to gain citizenship?
RA: I tried to get citizenship, but I couldn’t really success in my attempt they kick me in a state of and give me something in a piece of paper to live in that part of the country. It’s a Kurdish issue no one help us, no one help me. No one stand for me.
M: Ok, we need to be a bit more specific, I am quite familiar with the Faili Kurdish issue. Can you tell me where your grandparents on both sides were born and where your parents were born and how they came to be in Iran?
RA: My father and mother they were born in Iraq. When Saddam expelled people from Iraq, my family, my mother and father left with the rest of the people, Kurdish Faili that were expelled from Iraq to Iran.
M: Ok, where were they born in Iraq?
RA: In that town of [Town 1].
M: And where were your father’s parents from?
RA: I haven’t heard from my family about them, because I used to live with my father and my mother, I didn’t really meet my grandfather or grandmother to know where they were born to know what their origin.
M: You don’t have to meet them to know that I mean if you are claiming you are stateless, and where you are born is a very important element of your identity, I assume that you would have asked or have been told where they were born even if you didn’t meet them, so I ask you again, where were your father’s parents born?
RA: In fact I don’t have any knowledge about my grandfather or my grandmother, I know everything I used to live with my family I know everything about my father and mother, I don’t know anything about then.
M: What about on your mother’s side?
RA: I know they were in [Town 1], Iraq.
M: where were your maternal grandparents born?
RA: They were born in [Town 1], Iraq
M: So your mother’s grandparents were born in [Town 1], Iraq is that correct?
RA: That was what my Mum told me, my parents were born in [Town 1] maybe, that’s what I heard from my Mum.

100. M: So why don’t you know where your father’s parents were born if you know where your mother’s parents were born?
101. RA: Actually, my father was subject to torture in Iraq, most of his life in Iran he was on the bed, he did not have a good health and situation to ask him and so I couldn’t ask him like I could my Mum, she was fit and talking to me most of the time, I couldn’t communicate with him because of his health issue.
102. M: But your mother would know where her parents in law were born, so did your mother tell you?
103. RA: I heard from my Mum, she said all of us, in fact most of us the family we were originally from [Town 1], the Iraqi town of [Town 1], we were there before Saddam expelled us to Iran.
104. M: Does your mother and father have brothers and sisters?
105. RA: I haven’t met them.
106. M: No, that’s not what I asked. Do they have brothers and sisters?
107. RA: Yes, they used to have.
108. M: Ok, well tell me more about them, how many do they have, where are they, what nationality are they?
109. RA: If I have, I don’t know where they are, I don’t have any knowledge about them.
110. M: Have you ever asked?
111. RA: I swear of God I wish that I had other people, I had Aunty, I had Uncle, I had all these people, but unfortunately because of our miserable life we had over there I never heard about from my family about my uncles and my aunties and my other relatives.
112. M: Surely you would have been expelled at the same time and then ended up at the same place?
113. RA: I wasn’t in Iraq; I don’t have any other knowledge because I wasn’t born at that time.
114. M: Ok. What year were your parents expelled?
115. RA: Actually, they fled from Iraq to Iran, when Saddam started his campaigns, he would send Iranian background to Iran so they fled the country and they closed the border to Iran. That was what my Mum told me.
116. M: Ok and did they receive a green card?
117. RA: They promised them to give them a green card, however, they give some of them green card and the rest they promised them, like next week, next month. In the end they didn’t get anything.
118. M: And when were you born, what year?
119. RA: Actually, I was born in an Iranian town, just close to the Iraqi border, on the other side they also have Iranian [Town 2] in [Iranian calendar year]. According to Iran calendar, but I’m not sure which month, which day, but I know I was born in [year].
120. M: So you were born in Iran in [year], were you born in a hospital or where were you born?
121. RA: Under the tent, in the mountains, no hospital, under the tent.
122. M: What do you mean under the tent? Who helped your mother give birth?
123. RA: Actually I was born in the mountains area, there was no hospital at that time, you know, ages ago when I was born at that time, an elderly lady from the village, she has experience help pregnant mum to deliver their babies.
124. M: And you stayed in that village all your life, did you?
125. RA: Yes, in the mountains, a village next to the mountain.
126. M: How old were you when you left Iran to come to Australia?
127. RA: RA: Precisely I cannot tell you one hundred per cent, I was something like [age range] like this.
128. M: So you were an adult?
129. RA: Yes
130. M: Where are your parents now and where are your brothers and sisters now?
131. RA: Yes I know like my one of my brothers, is in [Town 2], the Iranian side they belong to the province of Ilam.
132. M: So you have one brother in [Town 2], how many sisters and brothers do you have, and where are they?
133. RA: I have [specified siblings].
134. M: And where are they?
135. RA: Actually they live in a village belong to the town of [Town 2], this village is called [Village 1].
136. M: They all live there?
137. RA: Yes
138. M: Do any of them have citizenship to any country?
139. RA: No, honestly when I was there they didn’t have, but now I don’t know, maybe they have maybe they don’t, honestly I don’t know I’m not sure one hundred percent.
140. M: Ok, when was the last time you contacted them?
141. RA: The last time I talked to one of my family members it was my sister, more than a month ago.
142. M: So you speak to your siblings?
143. RA: Yes, I communicated the last time with my sister not for long, maybe like three to five minutes, something like this.
144. M: So how often do you speak to your siblings?
145. RA: It depends, sometimes two months, sometimes forty days, sometimes three weeks, sometimes like this.
146. M: And are your parents alive?
147. RA: Actually both of them have passed away, my father, because of what I told you earlier he was subject to torture, mistreatment in Iraq. When he arrived in Iran he was mostly on his bed and then he passed away as a result of that torture. My mum, she also passed away because of the heart complication.
148. M: When did she die?
149. RA: According to my sister, my sister told me, maybe four or five years ago, yes something like this. My sister told me.
150. M: Now one of the issues with Faili Kurds, there are a number of ways that Faili Kurds who were stateless get citizenship and given from what you’ve told me, you conceivably could have gained Iraqi citizenship, or Iranian citizenship. Can you tell me what steps you have taken, what the procedures are to get that citizenship? What steps you have taken to get that citizenship? These steps were in place before you left Iran, so can you just talk me through your understanding of how you can get those citizenships and what you did to try and get them?
151. RA: My mum told me, some Kurdish Faili, they got their citizenship, they got whatever they want some others, but we didn’t get anything, we were part of those people who didn’t have anything. I tried, but I couldn’t get anything.
152. M: No, I want to know what you did, not what your mother told you, you were an adult at the time you left in your [age range], I want to know what you did, what your own understanding of what the rules are about getting Iraqi citizenship or getting Iranian citizenship and what you, personally, did to get either of those citizenships.
153. RA: There’s a thing in Iran, I’m not sure you have the word or not, when you go to any Department to apply, they ask you for the name of your father and mother there.
154. M: No, sorry, lets take this one step at a time. Firstly, can you tell me what the rules are regarding your eligibility for Iraqi citizenship?
155. RA: Forget Iraq, I wasn’t born in Iraq, I was born in Iran.
156. M: Yes, but that’s not what I asked. Given your background, you, or your family, may be eligible for Iraqi citizenship. Can you tell me, what those rules are, because I imagine you would have tried to exhaust all possibilities? So, can you tell me what the rules are, given your family background for gaining Iraqi citizenship? Iraqi citizenship, not Iranian.
157. RA: I wasn’t born in Iraq, I don’t know the Iraqi law, because Saddam was in Iraq, he said he is not going to give any citizenship or any of those things to Iranian people.
158. M: Yes, but he left in 2003, so he’s not around anymore. So, do you know that there is any possibility you could get Iraqi citizenship, I imagine you would know, it’s quite well known?
159. RA: Actually, we lost between Iran and Iraq. When you go to Iranian office they said go to Iraq. When we go to Iraq they say, “oh you were born in Iran, what are you doing here?”
160. M: So can you tell me what the rule is, whatever they may be. Do you know anything about Iraqi citizenship law?
161. RA: No, I don’t have any knowledge about the Iraqi, but one thing I know people they go to Iran and they say oh your family originated from Iraq and you go to Iraqi and they say, no, no you were born in Iran. I don’t know anything about the law or the rules.
162. M: Why not, you say you are stateless so you would want to get citizenship any way that you could, on the face of it, you would be eligible for Iraqi citizenship. But you don’t appear to know what the law is. That’s a bit strange.
163. RA: Believe me, I said, even in Australia, how I get to be a citizen, or how I get something. Because you know anyone, he or she, wants to have a piece of paper to put who is he or she? So I tried this also to know, you like you know Iraq or Iran or anywhere just to have something to prove that I belong to somewhere, but unfortunately I didn’t get anything.
164. M: Country Information here says that there was an Iraqi nationality law in 2006 was brought in, that allowed individuals to have their nationality to be reinstated and to be given Iraqi citizenship. Since then, about a hundred thousand people have had that reinstated, so it is obviously pretty well known. Its now 2022, so 16 years after that and a) I’m very surprised that you didn’t know about it and b) that your family members still in Iraq don’t know about it. Your parents were born in Iraq, you say, your grandparents were born in Iraq you say, that there are records there, so they would be eligible for it. So the fact that you don’t know about it, raises serious questions in my mind.
165. RA: Actually you are right, sir. People who were born in Iraq, yes if they go back to Iraq and prove they were born in Iraq they give them (citizenship). Yes, correct, yeah you are right. But, unfortunately I was born in Iran I have no right, they say look you were born in that other country, we don’t know you.
166. M: Yes, but your mother was alive then and so, she was born in Iraq. You said she only died three or four years ago, so that is twelve years after the citizenship laws, so why didn’t she get it. Then once she gets it, then, the rest of the family gets it. So, how is that your mother didn’t go across?
167. RA: Actually, you are quite right regarding the people. But unfortunately, my Mum, when we left Iraq, Saddam didn’t give us any paper or anything from the Iraqi regime. In 2006 law, people go to the countries and they have something to prove and they give them Iraqi, but my Mum my family they didn’t have anything, any paper to prove that.
168. M: I thought you said you didn’t know what the law was, you now know what the law was.
169. RA: Yes I don’t have, yes you are right, what I mean I don’t have any knowledge myself. I heard from people, they went there, they lodged, they give them their property for some people. But what I heard from my family is that they don’t have anything to prove that they were originally from Iraq.
170. M: But you don’t have to have them, that is what I am saying. Those records are held in Iraq, so you would need to go to Iraq and get the records from Iraq, but it doesn’t appear that any of your family members have gone to try and find them and if they are from [Town 2 variant], they just have to go across to the other side to Iraqi [Town 1], so there doesn’t seem to be much interest to prove your Iraqi citizenship. Why is that?
171. RA: Yes you are quite right, of course quite right, but I mean even I know some friends they said about this issue and really you are quite right Sir. For instance myself, five years I was in a detention centre and in Australia for the last twelve years and still I don’t have my future is uncertain, so how about them the same, in Iraq and Iran I am away from them in Australia, even in this country I am subject to torture, I am in mental torture – same what happened to me here happened to my family and to us in another country also.
172. M: Can you please just answer the question? I am well aware how long you have been in Australia, just one of the issues I am trying to determine is whether you are telling the truth, that is why you are here in the Tribunal today, do you understand? And there are quite a lot of people who claim to be Kurdish, from Iran, who claim to be stateless, who are in fact not stateless because they are Iranian citizens and always have been. I am trying to determine, in your case, whether you have always been an Iranian citizen, or are truly stateless, so please assist me, in answering the questions that I ask you.
173. RA: I apologise Sir, if I said something or interrupt you, I am getting tablets and these tablets sometimes affect my speech or mentality.
174. M: Can you tell me what the Iranian nationality law is, and whether you may be eligible for Iranian citizenship and what you have done to try and get it before you left Iran.
175. RA: Now I don’t know the rules, or Iranian law, or how to apply for citizenship. In the past, when I was there, I applied for a card, they said in tent, then I was working for my card, working for my tent more than 12 years ago.
176. M: Could you have been eligible not for a card, a green card, but for citizenship?
177. RA: I applied when I was working, when am I going to eligible, when am I going to get that piece of paper.
178. M: But what are the rules? There is a law that means you might have been eligible. What makes you eligible for Iranian citizenship?
179. RA: Iran only money, you bribe people you get everything. Iran has no law, there is no real law but, on the paper, the reality is there is no law, if you give money you will have everything in your life. I don’t have any knowledge about their law as there is no real law.
180. M: Ok, well there actually is a law, and it says if you were born in Iran to non-Iranian parents even, when you reach the age of 18, you can apply for Iranian citizenship in your own right and you can register your birth late, as long as you have a couple of witnesses. I find it difficult that you wouldn’t know that that was the law, all Kurds would know that was the law as it would relieve you of your statelessness and same with all your brothers and sisters, when they turned 18 they would have turned eligible. Why is it that none of you appear to know what the law is, let alone try to exercise your right?
181. RA: We were living in a village very far away from a big town, we didn’t have any law, no one educate us about this law, about this thing, so we were villagers, we were busy with our own life!
182. M: But when being stateless is your claim to being persecuted, a hundred thousand people know about the Iraqi citizenship law, there are other people who know about the Iranian citizenship law, word of mouth just passes it. Because if your statelessness is the problem, word of mouth would tell you what that law is, everybody would know that law, it is reasonable to believe.
183. RA: It is the mountains area, it is a village next to the mountains very far away we didn’t have knowledge, we did have some, but there were some reasons for not having the paper, not having some, that is the reason. You are right, they give some to other people, but they didn’t give to us.
184. M: Ok, now your father’s name [specified] and your mother’s name [Mother A], they are very Iranian names. Your siblings’ names: [specified], they are all very Iranian names. So I’ve got a concern that you’re just Iranian Kurds and have always been Iranian, and the fact that you don’t appear to know the facts about Iraqi citizenship or Iranian citizenship is because you’ve never had to worry about learning these laws as you’ve always been Iranian. Both your family names and your siblings’ individual names would appear to indicate that you have a very significant Iranian heritage, so perhaps you are, and always have been, Iranian citizens?
185. RA: Sir, in terms of names, all are mixed up. It’s a name, you know Iranian, Kurdish or non-Kurdish, all the same, mixed up. One hundred percent you are quite right, I believe you about the names the similarity between Kurdish and non-Kurdish names. I mean, you know, you should investigate about what I said, because not all people are the same, many people are similar they have the right to apply. The only person who was able to assess me to give me a hope to get rid of all this uncertainty to get rid of this miserable past and give me a future, its all in your hands.
186. M: Now just checking, about your mother, you told me today that your sister had told you three or four years ago that your mother had died with a heart problem. But in 2016 you submitted a statement that you signed, that in 2012, your older brother had told you that your mother had died from a heart problem, that she couldn’t receive any treatment because she was stateless. So why is there a difference between your claim that she died in 2012 after speaking with your brother, and here today you are saying she died in 2018 or 2019 after you spoke to your sister?
187. RA: Actually Sir, yes, I said in 2016, my mum had some heart complications, she couldn’t get the treatment. I think the interpreter didn’t understand me, he said she passed away instead I said she was suffering from mistreatment or they didn’t give her medical treatment. I didn’t say my mum passed away in 2012, I said my mum was suffering from mistreatment because they were stateless. My mum passed away, 3, 4 or 5 years ago, my sister told me. Sir, I would like a correction also, my sister told me maybe like 4 or 5 years, maybe she passed away before that date, maybe more than 4 or 5 years ago. But she didn’t want to upset me and tell me. You are quite right sir, but maybe that is a mistake from the interpreter, he said that my mum passed away, but I didn’t say she passed away she was suffering from mistreatment, there were no proper medical treatment.

188. M: He wasn’t an interpreter he was translating what you had written. So I don’t see how he misinterpret, “my brother told me my mother was no longer alive, I don’t know the date of her death” I don’t see how you can mistranslate that, it is not something you said, it is something you wrote.
189. RA: Yes, you are quite right, but maybe I wrote it accidentally you know in 2012 not that well, maybe it was 2017 or 2018.
190. M: (The applicant was told about s 424AA). The Australian organisation that tracks transactions and international financial transactions, it is called “AUSTRAC”, it has given some reports that you have sent money to Iran from between November 2017 and May 2018, and you sent it to an address in Iran in Ilam and it was sent to [Mother A’s name], which is your mother’s name and so your mother would have been alive in May 2018 and she would have had to open an account in this institution, and she would have had to have identity documents to open this account. The payment was noted as being a “family support payment.” So my concern here is that you are sending money to your mother’s account in a financial institution in Iran, at least until May 2018. So there are two issues, one is that your mother is still alive in May 2018, which is inconsistent with your previous statement that she died because she couldn’t get medical treatment and because she was stateless; and second she would have required identity documents to open her account in this financial institution in Iran, which reinforces my concerns that she is an Iranian citizen, just as you are an Iranian citizen and this goes to issues regarding your credibility.
191. RA: 100 per cent you are quite right sir. You are quite right. Because it is my life in your hands now sir, you are able to move me in whatever direction you like, you can give me hope for the future and you can destroy my future, it is everything in your hands, you are the only person who can give me or deny me this new life.
192. M: Can you just answer the question, why are you sending money to your mother when you previously said she was dead?
193. RA: Actually when you send money to anyone person overseas, you have to give the name of your father or mother you have to give the name of the person who is going to get this money, yes you are right. I didn’t want to create any issues any problems for my sister, in Iran when you do anything, they ask for the name of the father or the mother. I don’t know who that person received that money, I don’t want to create any issues for my other family, my siblings I don’t know how they got the name of my mum, yes its correct but I don’t know how this happened.
194. M: I don’t understand, so how did you know to send it to this account?
195. RA: Actually issues like this, I give this money here, someone in Iran, he receive the money on the bank and give the money to my mum, my sister actually.
196. M: I don’t believe that is true, or is possible actually because I’ve got country information from AUSTRAC says the person who is receiving the money in Iran has to give the customer’s account that is held by the financial institution, so your mother, has an account with a financial institution. So she had opened an account with an Iranian financial institution and she could open an account in Iranian financial institution if she had identity documents to do that. And you’re saying she’s living in a tent, in the mountains? I have serious doubts about the truthfulness of that, it would appear to me your mother has identity documents and lives either in, or close to, or in Ilam, like many Iranians do and you send money back to help support them? Nothing unusual in that, but what is unusual is that that your mother, who allegedly lives in a tent in the mountains, has identity documents that she allows her to open up an account with a financial institution in Ilam. It raises questions in my mind that you are not telling the truth.
197. RA: You are quite right, Sir 100 per cent right. Yes, you are right. Sir you are quite right whatever you say, I believe you are right, you give me hope or you disappoint me.
198. M: Ok, so you are saying your mother is an Iranian citizen, is that what you are saying?
199. RA: Definitely you are right, the person with the money from the bank, from the institution yes they must have something to prove that they are Iranian.
200. M: So that is your mother?
201. RA: It is complicated when you go to the bank really you need to have your ID, otherwise who are you, but yes I believe you are quite right.
202. M: Can you just be clear, did your mother open this account? Yes, or no?
203. RA: You are quite sir right, the name, I’m not sure but you know, maybe someone opened the account for her I’m not sure, I am here, they are there, I’m not sure, but really you are 100 per cent right, I don’t know what to say, you know.
204. M: If you are persecuted and didn’t have much money and were living in a tent in the mountains, why did you choose a very risky and expensive route to come to Australia via going through Iman Al Khameni airport, when it is much easier to go through a land border to go to say Armenia, to Turkey, where you can also claim protection at much lower risk and much less cost. Why did you choose the riskiest and most expensive point of exit from Iran, raises questions in my mind that you might have been driven by economic reasons and not because you were persecuted?
205. RA: Actually I paid the smuggler overall 7 million Iranian currency, the smuggler he advised me where to go, how to go where to go, so I listened to the advice of that Iranian smuggler. Everything was prepared and were advised by the smuggler they have a network, I find this way, the smuggler he gave me the advice I just follow the advice.
206. M: Yes, but it is very expensive you have to pay for airfares, go to Indonesia, I don’t understand you could just go to the border with Turkey and be there the next day, you didn’t do that?
207. RA: Actually the smugglers they advised this way, you will need money but you will do this was the best way, through [a foreign country] was open, people forgot about Turkey and Armenia the main thing the smugglers said this way. I’m paying smugglers like other people. I’m not only exceptional person to come to Australia, hundreds of thousands of people come this way.
208. M: Now the route to Australia is closed, why haven’t any of your family members left Iran because they are persecuted, why is your family still living in Iran some ten years later in a tent?
209. RA: Actually you know people risked their life, I risked my life to come to Australia, if other ways are better people they choose other ways.
210. M: If you are being persecuted as an Faili Kurd, why didn’t you other family members leave by another land border, like Turkey etc., why are they still there some ten years later? Living in a tent, in a mountain?
211. RA: I don’t have any knowledge about them, I will tell them.
212. M: Tell them what?
213. RA: I will ask them, why they are still there, why don’t they go to another country to another part of the world.
214. M: You mentioned that you were persecuted because you were Kurdish, you weren’t able to wear your national clothing for example. But country information suggests that Kurds aren’t specifically physically targeted for discrimination. Why do you claim that you are persecuted, but country information suggests that is not the case. Do you have any comments?
215. RA: It depends on the officer, the officer who is in charge of the group, for someone who is wearing Kurdish national dress, if he is a good person, a merciful one, but a goodless one he will do harm, if he is a good person, but a goodless person they persecute you if you are wearing Kurdish national dress. In Iran they have a government of the law, they always want the main group the hegemonic culture.
216. M: You also said you would be punished because of the way you left the country and you have talked against the country and because you are in a western country. So the country information indicates, unless you had a pre-existing political profile before you left Iran, the Iranian government doesn’t really care about failed asylum seekers, even if you have been negative about the Iranian government on social media, or you have converted to Christianity or for whatever reason because they understand that for economic reasons people go overseas and claim asylum and they don’t really care, unless you’ve been on their radar prior to leaving. Why do you think you would be of interest to the Iranian authorities?
217. RA: Sir, before I don’t know what to expect, I am going to be harmed, but I don’t know what will happen to me if I go back to Iran, because Iran they say something, and do something else. They say anyone can go back and they won’t be harmed but the reality is if I go back I’m not sure what will happen to me.
218. M: When you say, “you talked against the country”, what do you mean?
219. RA: Actually, in Iran, what I mean by this one, when you apply for asylum seeker in another country they will ask you questions the Iranian security the Iranian authority, the leader of the country the religious leader they say they will kill all these people overseas because they betray the country, you will be tortured they ask you to admit what you said.
220. M: So that is the only time you have spoken against Iran, during immigration interviews, is that correct?
221. RA: The Iranian way of thinking is different, that this is a political issue, they will say look, why didn’t you come back after one year, two years, three years, now more than 12 years you are mixed with their culture, you are going to be exposed with the western culture as opposed to the Iranian culture. You are able to go what is going on with Iranian culture and research how they treat them and how they mistreat them to any organisation.
222. M: Country information says that the Iranian health system is quite good and for Iranian citizens there is quite good access to their health care, any of your health, including mental health requirements could be attended to in Iran.
223. RA: Yes you are quite right but this one is discrimination even in Australia I ask for help, but they torture me, instead of addressing my concerns I was subject to torture in Australia with the treatment because what happened you know, they didn’t tell anyone and they did what they did to me because they were running the show no one is able to me, people they cover up their things.
224. M: You also made a claim in 2016 that you would have to pretend to believe in Islam, even though you are no longer a Shi’a Muslim. And if your lack of faith was discovered you would be at risk of being executed. But country information indicates that Iran has a low level of mosque attendance and that the Iranian authorities don’t usual pry into individual’s religious observance so that if you are a non-observant Muslim, that is no real problem in Iran.
225. RA: I think the interpreter made a mistake or didn’t interpret properly, what I said is I don’t have any religion, I don’t believe in religion, I don’t belong to any religion, that is what I said. Actually I respect people of any religion, what they believe is their choice and I respect fully any religion, I never interfere in any peoples religion.
226. M: Same thing applies, if you just keep your religion to yourself firstly the Iranian authorities wouldn’t really know and also they wouldn’t really care because your private thoughts are private and the Iranian authorities don’t really interfere in that space.
227. RA: Of course, anywhere any people who have issues no one would do anything to you. If something is personal, people don’t interfere in someone else’s affairs, they don’t care, that is their own business their own life.
228. M: So why would you be executed?
229. RA: I don’t know what will happen, what they will do to me, what type of persecution, what type of torture, I don’t know what I’m going to get if I go back. Actually you know, one of the issues after I arrived in [Australia] I was in the toilet, then suddenly 20 officers attacked me and beat me up, I didn’t do anything wrong. Sorry, 2 officers.
230. M: Ok, I am just interested in issues as they related to your fear of harm in Iran, that’s it.
231. RA: I don’t what I am expecting if I go back to Iran how they persecute me, I don’t know what is waiting for me when I go back.
232. M: Is there anything you want to raise with me, I’ve got no more questions of you.
233. RA: I swear of god my brain is not working any more, I need help, if you help my life my future is in your hands, I need help. I swear of god after five years of detention centre, all these five years I’m not really comfortable my life, my future I don’t know what my future is, I’m really uncomfortable I am not feeling well, I really have a miserable life. Imagine, where you go, no one is ready to help me, even if I am at death’s door I don’t know where to go, to whom to talk, to fix my issues my problems, you know to do something for me.
234. M: Unless there are any other issues to do with Iran, I will speak to your advisor. Ok?
235. RA: Iran my life was very, no one cared about me , I was subject to mistreatment, I was subject to torture, no one helped me or cared about me.
236. M: Is there anything you would like to add at this point before you conclude the hearing.
237. Rep: The applicant has said everything he wanted to say, I wanted to make a few points to address what has been said today.
238. Rep: I would just like to make the point that there is a serious history of mental illness including schizophrenia and obviously I would like to submit updated information on this point. I understand he is currently taking anti-depressants, although I understand there is no written evidence to support that, by the applicant’s own account the applicant is experiencing some confusion and I ask the Member to take that into consideration when considering his evidence today.
239. M: Anything else advisor?
240. Rep: Just briefly and just to clarify concerns that his understanding that from his family that his mother has died as he has previously claimed, he was a bit ambiguous before when he was saying that the member was 100 per cent right, he was referring to the evidence of identity required to open a bank account, he was not referring to the suggestion that his mother was still alive. We had previously made submissions on that issue, I don’t propose to repeat those submissions.
241. M: Can you send a copy of that submission after?
242. Rep: Yes that was the submission dated 4 July 2018.
243. M: I’ve got part of it, I haven’t got the whole thing, can you send me the whole thing?
244. Rep: Will do, just some points, regarding his eligibility of Iranian citizenship, my understanding of Iranian law is he could only be eligible for Iranian citizenship at the age of 18 only if the mother had already obtained Iranian citizenship and the applicant’s case is that his mother is stateless
245. M: Yes, it is my understanding that both of his parents are non-citizens. That’s now recently changed. There are two different laws we are talking about, one is recent, and one is quite old, I am referring to the old one.
246. Rep: Thank you Member just very briefly in relation to the applicant’s lack of knowledge about his eligibility for citizenship there does appear to be some evidence a lack of awareness by Faili Kurds of their rights and that comes from a DFAT report on Iraq from 2018, so it I think it is plausible that he would not be clear on his rights and I emphasise his illiteracy, and um, there are somewhere between 1.5 – 2 million undocumented refugees living in Iran and it is plausible that the applicant is stateless.
247. M: The vast majority of them are Afghanis or from Pakistan, that is my understanding…
248. Rep: That may be the case, I don’t see a breakdown of nationalities of those refugees, the Member made the suggestion that status of the applicant or his parents should have returned to Iraq in order to obtain the Iraqi documents, at least in the case of the applicant’s father he fled Iraq and been tortured there, and was unwell in Iran would at least account for his decision not to return to Iraq.
249. M: That may be the case, if it were true, but he is also claiming that his mother was dead from 2012 so I may well not really believing it may be that his father is alive or not, yes, that is a claim he has made, it is not necessarily accepted that it is true.
250. Rep: Thanks Member, the applicant is just confirming he is making a truthful account today, we have provided previous submissions we have made to the Department in which addresses some of these issues and we would ask for further time in which we might be able to make further written submissions.
251. M: Yes, so I will give you a week from close of business 1 June 2022, just let me know how you are going by that stage.
252. Rep: Ok, thank you.
253. M: To the applicant, is there anything further you would like to add before we conclude?
254. RA: I believe the translator accidentally translated my writing from what I said into English, that is the translator’s fault, not my fault.
255. M: Ok, have you raised this before?
256. RA: No, I’m not sure, yes I don’t believe my mum passed away in 2012 as I only came in 2011 so it such a short time, its not the case, maybe translator mistakenly interpret or translate what was written. Before you refuse you don’t accept me as a refugee you just look to me see my situation and see my appearance and make your decision please sir. If you give me an opportunity to give me hope for the future, I am sure I would be a good person, I would be a different person serving something good. I have a right to survive, I have a right to live like other people, please judge me. I swear of god, I am getting tired, I am getting really exhausted, I don’t have any other rights like other humans to survive. What is my fault, what is my crime, I want to live like other people normal. I swear of god I don’t sleep well, I don’t sleep actually because of the uncertainty, I don’t have any hope I don’t have any future and its in your hands.
CONSIDERATION OF Claims and evidence
257. The applicant arrived as an irregular maritime arrival [in] November 2011 without documents. He claimed that he is a Faili Kurd in Iran whose family had fled from Iraq. He has claimed that he is stateless.
258. The applicant is [an age] year old single man. The applicant fears that he would be harmed by the Iranian authorities because he is a stateless Faili Kurd, because of how he left Iran, because he had claimed asylum and he would be considered Westernised as a result, had no religious beliefs and because while he was overseas he had talked against Iran and betrayed their country.
259. 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, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
260. The applicant had evidence of previous mental health treatment on his file. A letter dated 30 May 2018 from a Queensland psychiatrist noted that the applicant had required hospitalisation on three occasions in 2015 (while in immigration detention). He was diagnosed with paranoid schizophrenia, had attempted self-harm and had been treated with antipsychotic medication. The doctor’s report added panic disorder to his diagnosis, said that at the time she wrote the report he was troubled with paranoid ideation and auditory hallucinations.

261. On 18 March 2022 the applicant was invited to attend a hearing, however the applicant’s adviser requested a postponement on 6 April in order to gain further information regarding his current mental health situation to determine whether a hearing was warranted. The Tribunal wrote back requesting more details regarding his current mental health treatment. On 2 May 2022 a postponement was granted and the adviser stated that an update on the applicant’s medical treatment was being sought, his treating GP had allegedly left the practice and a psychiatric assessment was being arranged.
262. An update on his medical condition was requested from the applicant prior to the hearing. None was available prior to, or at the hearing. This finding is being written over a month after the hearing and still no updated medical report has been provided, nor any indication of when, or whether one would be provided. In light of this the Tribunal has proceeded to finalise its findings.
263. Based on the evidence presented the applicant does not appear to have undertaken any mental health treatment since he has moved to Victoria. There is also no evidence of his treating GP in Victoria having been in contact with [Doctor A], nor has the applicant required hospitalisation as a result of any psychotic episodes since 2015.
264. While he claims to be on medication, the medical centre provided no indication that he was – indeed, they provided no information whatsoever. The Tribunal has had regard to the medical history before it, which essentially indicates that the applicant’s mental health deteriorates when incarcerated and that he was psychotic even though he was living in the community. [Doctor A] stated that she planned to continue to monitor his mental state and compliance. Sometime after this report was written the applicant moved to Melbourne.
265. I also note that the applicant claimed at hearing that he had been given too many injections and too many medications and didn’t know what was going on and was really confused, when he was asked whether there was a medical reason he could not attend the hearing. At the end of the hearing he said that his brain wasn’t working. His September 2016 statement and a July 2018 submission made on his behalf by his adviser also stated that the applicant was on medication and had trouble remembering. The 2016 statement said it resulted from multiple electric shock treatments and the 2018 submission that it was a result of being beaten by guards while in detention in [two centres].
266. I cannot give these claims much weight, given the only medical evidence I have (the May 2018 letter from [Doctor A]) does make mention of the applicant having had ECT, but it makes no mention of his being beaten by guards, nor does it mention that he has a poor memory as a result of this or of any medications.
267. The Tribunal has weighed up the applicant’s medical history as outlined in the May 2018 report by [Doctor A] against his life circumstances since that time to determine whether the applicant was medically able to attend the hearing and afforded a meaningful chance to present his case. I note that the applicant lives in the community, is employed as a casual [Occupation 1] and (as is noted later) since he has been in Victoria he has remitted money back to his family in Iran.
268. There is no evidence that he has had to be hospitalised for his mental health issues since 2015. He presented no evidence, such as medical scripts, that he was currently on medication for a mental health condition. His 2016 statement said that he could not concentrate for long periods and got headaches very easily – neither of these issues presented themselves at hearing
269. The applicant was lucid throughout the hearing and his responses were coherent and relevant to the questions asked of him. To the lay observer he didn’t appear to be psychotic insofar as he answered questions when they were put to him. I am satisfied that mental health did not play a part in the inconsistencies nor inability to accurately recall events that was evident in the hearing, nor did the applicant seek to mount this argument. The Tribunal was satisfied that he was given a real and meaningful opportunity to appear before the Tribunal to present evidence and mount arguments.
270. 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 reliable, credible or truthful witness, and that he fabricated claims in order to be granted a protection visa.
Credibility
271. The implausibility and inconsistency surrounding his claim that his mother died leads the Tribunal to make an adverse credibility finding against the applicant. At his hearing he claimed that his sister informed him that his mother passed away four or five years ago (2017/18). In his statement provided on 21 September 2016 however, he claimed that the last time he had contacted someone from his family was three years prior (2013) when he spoke to his brother who told him that their mother had died.
272. He claimed in the 2016 application that his mother was deceased and in the accompanying statement that his mother had a heart problem but that she couldn’t receive proper medical treatment because they were stateless Faili Kurds. Not only were there inconsistencies regarding who told him that his mother died and when, her alleged untreated heart condition that he spoke of in his 2016 statement was inconsistent with his claim at hearing that his mother was ‘fit’ and talking to him most of the time regarding their family background.
273. His claim that his mother was dead by 2016 is also fatally undermined by AUSTRAC records of money in November 2017 and February and May 2018 made by the applicant from Victoria to an account in the name of [Mother A variant] (his mother’s name) in Ilam, Iran. AUSTRAC documents indicate that transaction records must note the name and number of the beneficiary customer’s account with the disbursing organisation. The transaction indicates that [Mother A variant] holds an account with the receiving institution in Iran. This would indicate not only that his mother was alive in May 2018 but that she had documentation that allowed her to open an account at the institution receiving the funds.[1] An undocumented Faili Kurd would not have had such documents.
[1] See AUSTRAC Declaration 2 of 2010 (Section 248 of the Anti-Money Laundering and Counter-terrorism Financing Act 2006) dated 3 March 2010 for the contents of a report about the recipient of funds.
274. I do not accept that one has to give the name of a parent when they collect money, that he was unaware of how the account was opened in his mother’s name, or that someone else receives the money at the bank and gives it to his sister, or that someone else my have opened the account for her. Not only are these reasons internally inconsistent (and lacking supporting evidence regarding the claim to need the name of a parent to collect money), they are also inconsistent with an earlier claim made by his adviser in July 2018 in response to the same issue that the name was ‘similar’ to his mother’s and that he had paid $100 a Kurdish man named [Friend B] to hand the funds over to his family.
Nationality
275. The applicant has steadfastly maintained that he is a stateless Faili Kurd since he arrived in Australia in November 2011. This has been repeated in multiple interviews and hearings, as well as identity assessments. During all of these interactions he told the individual to whom he was speaking that he was an undocumented, stateless Faili Kurd.
276. Consistency of claim however, cannot be considered in isolation. As the Federal Court has noted: ‘Even the most casual observer of the human condition would agree that some people are willing and able to live a lie for their entire lives if there is something sufficient for them to gain from it.’[2]
[2] Judge Driver in EFP19 v Minister for ICMSMA (2021) FCCA 1508 (24 August 2021), para 63.
277. Having weighed up all the evidence available to it, the Tribunal is satisfied that the applicant is not stateless and is in fact a documented Iranian citizen. There are a number of reasons why the Tribunal has reached this conclusion.
278. To begin with, the applicant claimed at hearing that his parents were promised a green card when they left Iraq to come to Iran but that ‘in the end they didn’t get anything’. An interview[3] the applicant gave to [Newspaper 1] in 2014 said that he had to live the first [number] years of his life on a green card. This was put to the applicant via his adviser in a s 424A letter. The adviser stated that they could not contact the applicant to receive his instructions and asked for additional time. No reason was given for their inability to contact the applicant and, given the information was not a key part of the decision, no additional time was given.
[3] [Source deleted.].
279. The adviser’s response was that this claim about the [number] year green card was not a direct quote and the circumstances of the interview weren’t known so the content could not be relied upon reliably. The story was only about the applicant and no one else, and there is no plausible reason why the journalist would have spoken about a green card and the specific timeframe without having been told about it by the applicant. The inconsistency noted in the story with the applicant’s claim at hearing is simply another reason the Tribunal finds the applicant’s oral testimony lacks credibility.
280. The applicant’s claim to have suffered serious harm in the past and to fear it in the future rests on the fact that he claimed to have been an undocumented, stateless Faili Kurd. Given this was the essential reason for his alleged persecution it is reasonable to believe that he would be knowledgeable about, and exhausted the available avenues to gain citizenship. Yet he exhibited a marked lack of knowledge of his familial antecedents or of any citizenship options open to him. Nor had he attempted to secure citizenship through any of these channels.
281. The Tribunal finds this attitude difficult to reconcile with someone who is genuinely persecuted as a result of their statelessness. Country information indicates that a genuinely stateless person with the background the applicant claimed had several options to seek citizenship.
282. The first of these was to apply for Iraqi citizenship based on the passage of the 2006 Iraqi citizenship law and the fact that he claimed his parents were born in [Town 1] in Iraq. Given this, they would have been eligible to apply for Iraqi citizenship following the passage of the citizenship law in 2006 subject to providing the necessary documentation. Country information indicates that the Iraqi registration of people born in that country has been recorded and preserved since 1934, and that multiple birth records have been maintained allowing for verification of these events.[4]
[4] Sulaiman Bah, ‘The Iraqi civil registration system and the test of political upheaval’, Canadian Studies in Population, vol 41, nos 1-2, Spring/Summer 2014.
283. Although the Tribunal does not necessarily expect the system to have been without difficulties, country information indicates that by March 2010 around 25,000 Faili Kurds had re-obtained their Iraqi nationality.[5] This would indicate that the program was quite well known and, given the applicant was allegedly from a village in Ilam on the border between Iran and Iraq, where there would have been many Faili Kurds, it lacks credibility that the scheme would not have been known by those whose families had been expelled from Iraq. The applicant’s lack of knowledge regarding it, let alone attempt to alleviate his alleged statelessness by benefitting from it, lacks credibility.
[5] DIAC Country Guidance Note, Iran, July 2017, p 17.
284. The same goes for his mother, who would also have been eligible to try to apply for Iraqi citizenship. I note that the applicant claimed that they had no documents to prove their Iraqi antecedents however, as I have noted above there are extensive records held in Iraq that could have supported the applicant’s parent’s claims to have been born in Iraq and therefore assist in their claim for Iraqi citizenship even if they didn’t have those papers in their possession in Iran.
285. I have also noted the adviser’s claim that Faili Kurds may not be aware of their rights (regarding gaining documentation and therefore citizenship) and quoted a 2018 DFAT report on Iraq. I note that the subject report does note this, but I also note this refers to Faili Kurds inside Iraq. The same report also notes the return of Faili Kurds from Iran to Iraq and the fact that many of them did regain their citizenship.
286. I am satisfied that the applicant’s family would have had knowledge of the Iraqi citizenship laws and had the ability to enter Iraq and to source documents that could lead to the granting of Iraqi citizenship. The fact that they never did is, I believe, because they had no need to which in turn was because they were not stateless and were, in fact Iranian..
287. Second, the applicant could have applied for Iranian citizenship through his paternal ancestry. Although the process is said to be difficult (a 2008 UNHCR report said that 760 Faili Kurds had received Iranian citizenship after a lengthy process[6]), other country information also notes that many Faili Kurds have applied.[7] Whilst I note that the applicant claimed that his father was born in [Town 1], Iraq and therefore not eligible for Iranian citizenship directly, he was not sure of where his paternal grandparents were born.
[6] Vivian Tan ‘Feili Kurds in Iran seek way out of identity impasse’, UNHCR, 28 May 2008.
[7] DFAT Country Information Report – Iran, 14 April 2020, p 28.
288. I do not accept that he didn’t know because he never really met them and his father was bed-ridden and died from torture he received in Iraq. This relies entirely on the applicant’s oral testimony which I have found lacks credibility. Regardless, given their alleged statelessness it lacks credibility that the applicant’s mother would not have known where her parents-in-law were born and could have passed this on to the applicant at any time.
289. Again, the concern of the Tribunal is not whether the applicant would have been successful if he had applied for Iranian citizenship based on his paternal grandparents’ antecedents, it is his lack of knowledge of what the Iranian nationality law was or whether he may have been eligible for Iranian citizenship. He admitted to the Tribunal that he didn’t know that Iranian citizenship laws, which strikes the Tribunal as lacking credibility for one who claims to have been subject to serious harm due to statelessness.
290. The applicant could also have applied for Iranian citizenship himself. The Nationality Law allows for someone to claim citizenship if they were born to foreign parents and have their birth registered. If by the age of 18 the birth hasn’t been registered they can request a late birth registration with the process requiring witness substantiation. Whilst I note the applicant claims to have been born in a tent he also claimed his mother was assisted by a midwife so there would be Iranian citizens who could act as witnesses. Once again the Tribunal does not necessarily believe the process would have been easy, however his claim not to even know about the rules let alone apply adds to the Tribunal’s concerns about the truthfulness of his claims.
291. His lack of interest in, or knowledge of the citizenship status of his aunts and uncles or even his siblings is also inconsistent with someone who claims statelessness as the essential cause of their alleged persecution. This reinforces the Tribunal’s concerns that the applicant is not stateless but is and always has been an Iranian citizen.
292. I do not accept that his ignorance of these processes can be explained by the fact they were in a village next to the mountains far, far away, that nobody educated them about the law, or because he was illiterate. He claimed that the statelessness affected all aspects of his life and that of his family, so his distance from main towns may have made the actual process of gaining citizenship more difficult, however not the knowledge that such processes existed. He said as much when he stated that the authorities gave citizenship to some people but not to them. He was unable however, to articulate the process by which he or his family allegedly sought such citizenship.
293. He did not need to be educated about the law or to be literate to find out that there was a system to be granted citizenship and that he could apply as others had. This could be passed by word of mouth. He could then have enlisted the help of someone who was literate to assist him in filling out the necessary forms.
294. Because I am satisfied that the applicant’s parents were Iranian citizens and not stateless Failis, it follows that the applicant is, and always has been an Iranian citizen. As a result, it follows that he never required a green card, never left the country illegally or on a forged document, that he was denied an education or work opportunities or paid less than that of an Iranian, that he or any of his family members were denied medical treatment, that he could not get married because it wouldn’t be registered, that he was abused and discriminated against, lived in fear of being detained and tortured by Iranian authorities nor lacked basic human rights, was ever detained by the Basij, or mistreated by them as a result.
Travel
295. The applicant’s claims regarding his departure from Iran also raise questions regarding the truthfulness of his reason for leaving Iran. Despite allegedly being in financial hardship because of his statelessness, he left Iran via the most secure and expensive point of embarkation – Imam Khomeini airport (IKIA). There are much safer (and cheaper) ways to leave Iran. Country information indicates that the departure procedures at IKIA are robust and that it is more achievable to depart Iran overland than by air.[8]
[8] Ibid, pp 69, 73.
296. I do not accept that he simply did what the smuggler told him to do after he paid him the money. Given the large sums of money involved. It is reasonable to believe that if his intent was to leave the country he would have sought to do so with the lowest amount of risk at the lowest price. Simply saying that the people smuggler told him what to do may be fine, however given the applicant was an adult who could have asked questions regrading the price alone, and sought out a cheaper option than that offered to him, denies the applicant any agency in the process.
297. It is also noteworthy that none of the other family members, who presumably face the same persecution because of their statelessness, have sought to leave in the past decade even though these cheaper, low-risk overland routes are available to them. I do not accept that they would not have known about this, given the applicant himself found out about the expensive, high-risk method for allegedly stateless people leaving the country.
Kurdishness
298. I do not accept that there is a real chance that the applicant will face serious harm for being Faili Kurdish in Iran. Country information indicates that Kurds are not specifically targeted for discrimination based on their ethnicity and access government services and are afforded state protection to the same degree as other ethnic minorities. Faili Kurds who are Iranian citizens enjoy the same rights as other Iranians.[9]
[9] DFAT Country Information Report – Iran, 14 April 2020, pp 27-8.
299. The applicant claimed that they were not allowed to wear their traditional clothing or to practice their culture, however he provided no evidence in support of this claim. Given the DFAT country information noted above regarding Iranian government attitudes to Kurds, I am not satisfied that the applicant’s claim is true. Nor do I accept that it was only particular Iranian officials who did this. Given that it relies entirely on his oral evidence I do not accept this to be the case.

Anti-Government Stance
300. I do not accept that there is a real chance that the applicant will face serious harm or be questioned by Iranian security on return to Iran because he was overseas and talked against the country and sought asylum from it. To begin with the Tribunal’s country information indicates that Iranian authorities pay little attention to failed asylum seekers on their return to Iran and that unless they were the subject of adverse official attention prior to departing Iran (such as for political activism) returnees are unlikely to attract attention from the authorities.[10] The applicant had no such profile prior to leaving Iran.
[10] Ibid, p 70.
301. When he was asked what he meant by ‘talking against the country’, he stated that it would be his presence in a Western culture for 12 years that meant he was opposed to the Iranian culture and that he would have spoken against Iran by simply applying for asylum. He provided no evidence in support of such a claim, and once again the country information noted previously indicates that individuals are not of security interest to the Iranian authorities simply for applying for asylum overseas.
Other Issues
302. I also do not accept that there is a real chance the applicant will face serious harm because he believes in no religion. The applicant claims that he believes in no religion but respects people of any religion. There is no indication that he publicises his atheism in Australia and it is reasonable to believe that eh will do the same in Iran. I note that country information states that non-practising Muslims face a low risk of official and societal discrimination, while DFAT is unaware of anyone being prosecuted for being an atheist. It would be impossible to discern whether the applicant is an atheist, agnostic, non-practising Muslim or simply someone who does not believe in religion (as opposed to someone who doesn’t believe in God), so I am satisfied that the applicant will be of no interest to Iranian authorities on his return because he doesn’t believe in any religion.
303. I have accepted that the applicant suffers from a mental health condition and that he would require mental health treatment in that country. According to the medical report provided, given the requirement for an interpreter, pharmacological rather than psychological treatment has been used to treat him in Australia.
304. Country information[11] indicates that Iran has had a national policy on mental health since 1986 and that access to service, particularly in the rural areas has improved although social stigma discourages people from accessing these. No other information regarding the nature or prevalence of that stigma was provided. Other country information[12] indicates that the number of mental health workers has nearly doubled in Iran between 2011 and 2017, which would indicate a government focus on providing treatment to the population.
305. The applicant has no family in Australia and I note that the applicant’s lack of English has meant that he has had to rely on pharmacological treatment to date. If he were to return to Iran, he would have the support of his family, and be in an environment and culture with which he was familiar, using a language that he was fluent in.
306. The language commonality alone would therefore allow him to access psychological treatment that had been deemed impractical in Australia because of the language barrier. I note that neither the applicant nor his adviser have provided any evidence that the Iranian mental health system would be unable to treat his situation, or that he would refuse to access it, and so I am satisfied that it has sufficient capacity to treat his illness.
307. Indeed, given the applicant has the support of family with whom he has kept in contact since he has been in Australia, and would be returning to a country whose language he speaks, it is reasonable to believe that he would be able to access a greater range of mental health support through psychological (rather than simply pharmacological) assistance than he has in Australia. Given the supportive environment he would be in in Iran, I am also satisfied that the social stigma would be overcome by the applicant himself, or with the support of his family.
308. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
309. Because I do not accept that the applicant is stateless and is actually an Iranian citizen, and because I do not accept that he would suffer significant harm for being a Kurd, Faili or other, that he would not be imputed with being anti-government for seeking asylum in the West or being outside Iran for 12 years, that he would be of interest for having no religion, that he was ever of interest to the Iranian authorities or was ever detained or questioned by the Basij, or that he would be unable to access treatment for his mental health condition, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
[11] Ibid, p 15.
[12] Scaling-up a new socio-mental health service model in Iran to reduce burden of neuropsychiatric disorders: an economic evaluation study | International Journal of Mental Health Systems | Full Text (biomedcentral.com), accessed 4 August 2022.
CONCLUDING PARAGRAPHS
310. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision

313. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 3001

4 August 2022

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