1834210 (Refugee)

1834210 (Refugee) [2023] AATA 4320 (18 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Bernie Carrick (MARN: 1067227)
CASE NUMBER:  1834210
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE:18 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 September 2023 at 10:50am
CATCHWORDS
REFUGEE – protection visa – Iran – ethnicity and imputed political opinion – Awazi Arab imputed as anti-government or activist – detained, interrogated and beaten after complaining about unsuccessful job interview – multiple further questionings and ongoing inquiries to father about whereabouts – arrival by sea – not unauthorised maritime arrivals or fast-track applicants as defined – conversion to Christianity – physical and mental health – returned failed asylum seekers – detailed, consistent and credible claims and evidence – country information – relocation or state protection not available – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5AA, 5H(1)(a), 5J(1), 36(2)(a), (b)(i), (2A), 65, 411(1)(c)
Migration Regulations 1958 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
Fox v Percy (2003) 214 CLR 118
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
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 Immigration and Border Protection on 10 March 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 9 August 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Iran, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
According to Department of Home Affairs (Department) records, the applicants arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on 3 April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicants are not ‘fast track applicants’ (as defined in s 5(1) of the Act) and a decision refusing to grant them Temporary Protection visas or Safe Haven Enterprise visas is a part 7-revieable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal (Tribunal).
The applicants made an application for review on 20 November 2018 and were re-notified of their Part 7 review rights by the Department on 13 February 2019.
The applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants’ protection visas having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa applications, the applicants claim to be citizens of Iran. The first applicant provided a copy of his Iranian Driver’s License and he and the second applicant provided copies of their Iranian National identity cards, Iranian Birth Certificates and copies of their Iranian Passport biometric pages to the Department. As to the third dependent child applicant, the applicants provided a copy of the third applicant’s Iranian Birth Certificate and a copy of her Iranian Passport biometrics page to the Department. Based on this material the Tribunal finds that the applicants are who they say they are, and nationals of Iran. Iran is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.
Issues
The issues in this review are whether the applicants have a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Iran they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicants to the Department and the Tribunal relating to the applicants’ claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·Department’s letter of 26 February 2016 to the applicants inviting them to apply for Temporary Protection visas (TPV) or Safe Haven Enterprise visas (SHEV);
·The applicants’ protection visa application forms submitted on 9 August 2016 and the attached identification documents and their English translations;
·First applicant’s Statutory Declaration of 21 June 2016 outlining his background and summary of claims;
·Second applicant’s Statutory Declaration of 21 June 2016 outlining her background and summary of claims;
·Applicants’ application for review, lodged 20 November 2018 and the attached Department decision record of 10 March 2017;
·Department’s re-notification letter to the applicants dated 13 February 2019;
·Decision of the then Federal Circuit Court of Australia in EGJ17 & ORS v Minister for Immigration & Anor [2018] FCCA 3266;
·Administrative and movement records of the Department relating to the applicants;
·Written submission of the applicants’ representative’s (Refugee and Immigration Legal Service (RAILS)), dated 26 October 2021 which annexed the following documents: Statement of [the first applicant], dated 11 June 2021; letter of [Dr A], general practitioner, dated 10 September 2021; letter of [Dr B], consultant psychiatrist, dated 7 October 2021; and, a copy of the UNHCR Guidance Note on ‘The Psychologically Vulnerable Applicant in the Protection Visa process’ (Nov 2017);
·Supplementary written submission of the applicant’s representative’s (RAILS), dated 3 February 2022, addressing the new claim as to the first applicant conversion to Christianity in or about 2017, and providing an updated outline of his claims as being:
a)    Harassment, monitoring, imprisonment and mistreatment; and
b)    Arbitrary arrest, forced confession and torture.
This harm will be inflicted on him because of his:
a)    Race (Ahwazi Arab); and
b)    Imputed political opinion (Ahwazi activist and/or opposed to the Iranian regime); and
c)     Particular social group (People who were considered political in iran and who subsequently sought asylum in the West); and
d)    Practice of, and conversion to, Christianity.
·Applicants’ representative’s (RAILS) written reply to the Department’s ‘s 56 Request’, dated 7 April 2022;
·Letter under the hand of [Dr B], Consultant Psychiatrist, dated 14 April 2022;
·Letters of support (2) under the hand of [Dr C], Parish Counsellor, [Suburb 1] Parish, dated 23 April 2022 and 20 February 2018;
·Letter of support under the hand of [Ms D], Parish Warden, [Suburb 1] parish, dated 13 May 2022;
·Letter under the hand of [Dr A], dated 30 August 2023;
·Letter under the hand of [Dr B], Consultant Psychiatrist, dated 24 August 2023, in which it is reported that;
This is to confirm that I have assessed [the first applicant] on a few occasions since 22 October 2019 for a severe Anxiety disorder with psychosomatic features with a background history of trauma from overseas…It is highly likely that he may have exacerbation of his mental disorders if he has to undergo this above process with the AAT. He may not be able to represent his case appropriately due to his cognitions getting compromised in such a meeting, resulting in poor comprehension, dissociative experiences and very limited expression or resulting in psychological crisis state. I would expect the above issues be considered the Tribunal ands alternatives considered.
And:
·Supplementary written submission of the applicants’ representative’s (RAILS), dated 4 September 2023, and the accompanying annexures including: statement of [the first applicant], dated 11 June 2021; Response to s 56 request, dated 7 April 2022; statement of [the second applicant], dated 1 April 2022; statement of [the second applicant] dated 28 August 2023; Baptism and Confirmation certificate of [the first applicant] dated 5 June 2022; applicants’ IAA decision record, EGJ17 v Minister for Immigration [2018] FCCA 3266; letter of [Dr E], Psychiatrist, dated 24 August 2023; letter of [Dr A], General Practitioner, dated 30 August 2023; and letters of support.
In the first applicant’s Statutory Declaration of 21 June 2016, he stated in part at paragraphs 10 to 32 that:
I was forced to leave Iran because the Sepah militia suspected that I was a threat to the Iranian regime. As a result I was frequently interrogated and was tortured for 1 week by the Sepah Militia.
I left Iran because I felt that my life was in jeopardy and that I was unsafe.
I was going to an interview for a [company] at the beginning of the second month of the 1391 Persian calendar.
I went to that company to make enquiries about an available position that I had seen advertised in the newspaper. Because I met all of the requirements for the role I was able to interview on that same day.
When I sat down for the interview, I was asked my race. When I told the interviewer I was Arab, the interviewer handed my documents back to me and told me that I was not qualified for the role.
After the interview, 1 told the interviewer that I met all of the requirements for the job and questioned why I had been rejected for the role.
The interviewer then began shouting at me and disrespecting me. He was abusing me because of my race. He shouted at me, telling me to take my documents and leave because I was not qualified for the job.
The interviewer left the room and told me to wait until he returned. He then returned with 2 other people. He told me to follow them.
Two men forced me into a car. When we arrived at our destination, I saw a sign that said "[Centre]." This centre is part of Sepah, their information centre that relates to national security.
I realised then that they were Sepah militia and that I had had been brought to the centre for questioning. I was taken to a room for questioning where the Sepah militia began questioning me. I asked them why I was being questioned. I was told that I was there because I had been conspiring against the regime and that I was a threat to the regime. Sepah is essentially an organisation involved with intelligence and information, and they take their orders from the Iranian Supreme Leader. Sepah is very powerful and very influential. Sepah has a special authority from the Iranian Supreme Leader to do whatever they want to protect the regime and the Iranian Supreme Leader.
During the questioning, I did not accept the allegations they made against me.
The Sepah militia began physically interrogating me. This continued for a week. I was physically interrogated in the following ways:
a)    I was kicked;
b)    I was punched;
c)     My head was split open by them banging my head against the wall; and
d)    My [Body part] was broken.
I have had to continue to seek medical attention for these injuries since having arrived in Brisbane
I also suffer from migraines, and mental and emotional disorders as a result of the physical interrogation.
While in [Centre] I was unable to leave and was detained. When I was not being beaten, I was kept in a dark room. This was very difficult emotionally.
During the interrogation, I was given a pen and a blank piece of paper. I was told to sign the piece of paper. I asked them why you had to sign it. They refused to give me a reason. When I refused to sign the piece of paper, I was beaten even more and more violently.
After one week of refusing to give in to their demands, they told me that I had to sign a letter of commitment. The letter stated that I was not able to contact the interviewer who I interviewed with for the job. I signed the declaration.
I was then released from [Centre]. They asked me to leave from the same door I entered.
When I returned home, my family was shocked to see me in the condition I was in. My face was swollen, my [Body part] was broken, and it was clear that I had been beaten. I did not have the strength to tell my family what happened to me.
After my release, every 10 to 15 days I would be taken to the [Centre] for questioning. The Sepah militia interrogated me as they alleged that I was a threat to the regime and that I was a rebel.
Even though I was not being physically interrogated, I was mentally tortured. They would take me to a room and not speak to me for 4 – 5 hours. Sometimes when I was in the room I could hear the screams of others, as if they were being physically tortured.
This continued for 10 – 11 months. I could not take it anymore and decided to leave around…
If I am forced to return to Iran I fear that I will be subject to harm from the centre militia including:
a)    torture; and
b)    execution.
Sepah has a branch at the airport. If I am forced to return, they will be at the airport upon my arrival. I’ll be arrested and taken away away.
I cannot return. My life is in danger if I do.
Claims for protection
The applicants in their visa applications claim that:
·The first and second applicants are married and the first applicant is of Arab ethnicity (Ahwazi) and were both Shi’a Muslims that have a daughter, the third dependent child applicant;
·That in the second month of the Persian calendar 1391 (April 2012) the first applicant attended the [Employer’s] [workplace] about an hour’s drive from his home in Ahwaz to apply for an advertised [job];
·During his job interview he was asked about his race and after telling the interviewer that he was an Arab, he was told he was not qualified for the position notwithstanding he met the requirements of the position. After questioning the interviewer as to why he was not qualified for the position he and the interviewer become agitated and the interviewer started insulting the first applicant making derogatory comments about his ethnicity (Ahwazi Arab) and his family;
·The first applicant was asked by the interviewer to wait in another room where after 15 minutes the interviewer returned with two other men who took him into their custody and transported him to the ‘[Centre]’ (an intelligence office of the Sepah - Islamic Revolutionary Guard Corp). He was taken into a room and interrogated about his alleged conspiring against the regime. He was detained for a week and continually interrogated whereby he was kicked, punched, had his head banged against the walls and his [Body part] was twisted and broken;
·He was told to sign a blank piece of paper by his interrogators, but he refused to do so. But he later signed a letter of commitment agreeing not to further contact the interviewer at [Employer]. After signing this letter of commitment, he was released from detention and caught a taxi home;
·He continues to suffer and seek medical attention for his injuries, his broken [Body part], head injuries which have caused migraines and his mental disorders arising from his detention and torture;
·Following his release, the Sepah came to his home every ten days or so for the next 10 months and would take him back to their office where they would leave him in an interview room for 4-5 hours before releasing him;
·He left Iran fearing that he would be monitored, further interrogated, tortured and possibly killed by the Sepah who view him as an Arab dissident.
Department interview

The first and second applicants were interviewed separately by the Department on 13 January 2017.
Delegate’s decision
The delegate’s decision of 10 March 2017 to refuse the protection visas was made on the information before the delegate. The delegate accepted that the first applicant had experienced an altercation with a person or persons in authority following his failure to obtain a government job that he believed he was qualified for, and that he was made to sign a letter of commitment stating that he would not behave in this manner again and that he would not contact and/or approach the person who had interviewed him for the government job. However, the delegate did not accept that the first applicant had suffered any long-term harassment from the Sepah after his job interview through and until he left Iran. Therefore, the delegate was not satisfied that the applicants met the criteria in s 5H(1) of the Act, and therefore they were not refugees. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Iran, that there is a real risk that the applicants will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 14 August 2023 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 12 September 2023 at 9:30 am. This correspondence advised the applicants that the Tribunal had considered all the material before it, relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing – 12 September 2023
Applicant’s history in Australia
The Tribunal explained to the first and second applicants that the hearing would consider the applicants’ application for protection visas afresh. The first and second applicants when questioned by the Tribunal as to their understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that they understood the criteria, as it had earlier been explained to them by their representatives, RAILS.
Dr Carrick appearing for the applicants on behalf of RAILS, in response to the Tribunal’s questions as to whether an explanation of the relevant criteria should be provided to the applicants, explained that he was satisfied that the applicants had a good understanding of the criteria and a further explanation by the Tribunal was not necessary.
The first applicant, under questioning, told the Tribunal that after arriving by boat from [Country] and having been intercepted by the Australian Navy and then transferred to a Border Force ship, the applicants had been detained in [Location] for two months. They were then transferred to Brisbane where they were housed in temporary accommodation at [Suburb 2]. He said that they stayed at the [Suburb 2] accommodation for two weeks before they were able to secure rental accommodation at [Suburb 3] in Brisbane where they stayed for six months. He explained that as they did not know anyone in Brisbane, but did know some people in Melbourne, they relocated to Melbourne where they stayed for two years before returning to Brisbane in early 2016. The returned to Brisbane because of the better climate. After returning to Brisbane they found rental accommodation at [Suburb 4], where they stayed for two years before being contacted by the Department requesting them to attend their protection visa interviews.
He explained that after their interviews they were told that their applications for the visas had been rejected. He explained that following that decision their government payments ceased. As they could no longer afford their rent, they sought alternate accommodation. He said that the church had then provided them with accommodation at their [Community centre] at [Suburb 1] in Brisbane.
The first applicant then told the Tribunal that late in 2017 he developed some medical problems and was diagnosed with [cancer]. He said that he underwent surgery to remove a lump from his [Organ] and it was at this time he became unwell and depressed. He explained that he had suffered depression in Iran and especially so after his detention and torture in Iran, and that he became very unwell psychologically because of his past and his then personal medical situation.
After having surgery in around June 2018 at [Hospital] in Brisbane his mental health worsened and he found that all he could do, was go to church where he enjoyed the company and fellowship of other members of the parish at [Suburb 1]. He explained that after two check ups in the following five years of review his cancer returned and he had a second surgery one year after the first surgery.
He told the Tribunal that even now with his medications for his depression, and his recurring migraines, he still feels that he and his family are in limbo and that their future is very uncertain. He told the Tribunal that the applicants now have stable accommodation which has been provided to them by the [Church] at [College] at [Suburb] where they live with other refugee families and some students.
The first applicant said that he hopes that he and his family can remain in Australia and that they can move on from their lives being in limbo, and that he can obtain employment in the Australian [Work sector] given his extensive [job task] experience in Iran. He further explained through the interpreter that he also wanted to learn English so he can get a good job.
The second applicant confirmed the first applicant’s account of their life in Australia and told the Tribunal in English that she also wanted to obtain employment once her two children were old enough to allow her to do so. She believed that she could do so as [an Occupation 2], and later hoped to obtain training and a qualification in [Subject]. She further explained that while they had been living at [College], she had been assisting the College through volunteer work at the College as to the general maintenance of the College.
Travel to Australia
As to their departure from Iran for Australia, the first applicant told the Tribunal that after deciding to leave Iran to avoid further monitoring by the Sepah, and being taken into custody by them every 10 or so days, his father had organised and paid for the applicants’ travel to Australia from [Country 1] through people smugglers in Iran. He said his father had paid US $10,000.00 in Tehran to the agents of the [Country 1] people smugglers for their passage by sea to Australia.
He explained that they left Tehran and flew to [Country 2] using their own passports and then after a lay-over of five to six hours they flew onto [Country 1]. They then travelled as arranged to the [Country] town of [Town] where they stayed for a week in a house with about 70 other people who were also going to travel to Australia with the people smugglers. Whilst in the house at [Town] the Indonesian Immigration authorities attended the house and took all the occupants of the house to a detention centre where they took the applicants’ passports telling them that they would be taking copies of the passports and then would return them to the applicants. The women in the group were released and the passports were never returned to the applicants. Later the men who had been detained were taken by the Immigration officers to the shoreline and put onto small boats in which they travelled to sea meeting up with a larger boat in which the women and children were already housed. The larger boat with about 70 passengers then sailed for Australia and was later intercepted as had been earlier explained by the first applicant; see paragraph 26 above.
The first applicant told the Tribunal that the boat carrying them to Australia sat in limbo in the ocean for about eight to nine days without any water for the passengers until they were intercepted by the Australian Navy off the northern coastline of Australia near [Location].
Under questioning the first applicant told the Tribunal that they (the applicants) had not had any trouble departing Iran from the Tehran International Airport in February 2013 on their own passports and were not detained or questioned as to their travel plans by the Sepah or any other Iranian government officials.
First applicant’s job interview, arrest and detention
The Tribunal asked the first applicant to describe his job interview in Iran, that on his evidence (earlier Statutory Declarations) had resulted in his arrest and detention by the Sepah. In reply, he explained that he had attended [Employer] in Ahwaz in the first month of the Persian Calendar 1391 (March/April 2012) because of a job advertisement in the newspaper for [Occupation 1]s. He explained that after the interviewer had checked his [work-related] documents and licenses, he had become a bit agitated focusing on the first applicant’s surname and asking questions of him as to his race and family. He explained that the interviewer then asked him (the first applicant) if he was an Arab. Upon replying that he was an Arab, he said that the interviewer became angry and aggressive towards him and told him that; ‘we ‘don’t’ have any jobs for you guys’.
He further told the Tribunal that when he asked why he was unsuitable for the job, the interviewer became angry again and started to use abusive swear words and insult the first applicant’s Arab race and heritage making personal insults about his mother, sister and his family. The first applicant told the Tribunal, that it was like the interviewer was trying to make me angry and wanted me to fight (physically) with him. The applicant said that at this time he also became agitated and continued to question the interviewer as to why he was not suitable for the job and why as an Arab he was not suitable for employment with [Employer]. He explained that the interview became an argument between himself and the interviewer who then asked and ushered the first applicant into another room. He then found himself locked in that room.
He explained that after about 15 minutes the interviewer unlocked the door to the room where he had been waiting and entered the room with two other men who were in plain clothes but identified themselves as members of the Government. The first applicant in time, came to the belief that these men were from the Sepah (Revolutionary Guard’s Intelligence office).
These men, he explained, immediately put his hands behind his back and took him forcibly from [Employer] to their car, a black unmarked car which took him to a building which he said was named the ‘Intelligence Community’ or something similar. He said it had the name of ‘[Centre]’ on the front of the building.
After being taken into the ‘[Centre]’ he was placed in a small room with a desk and two chairs where the men who had detained him started to swear at him insulting him saying that he was an infidel and that he had been talking against the Supreme Leader and the regime. He was repeatedly told by these men that he was a threat against the regime.
He said that during this interrogation one of the men had taken the chair that he had been sitting on from him and he had then fallen to ground. While on the ground these men started punching him and kicking him in his legs and about his body. These men also bashed his head repeatedly against a wall of the room and twisted his [Body part], breaking same. At this point in the hearing the first applicant raised his [Body part], explaining that it is no longer straight and telling the Tribunal that they can see it is bent from that incident. The Tribunal noted that the first applicant’s [Body part] was in fact bent and disformed to some extent in accordance with the first applicant’s claims. He then said that he had also suffered some bleeding from his ears after these men had bashed his head against the walls of the room.
The first applicant told the Tribunal that his initial interrogation on the day of his detention had lasted for many hours before he had been taken to a cell. He told the Tribunal, that he was detained for about 7 days during which time he was further interrogated and bashed every two to three hours of each day while he was in detention. He explained that they would take him from his cell to the interrogation room where he was further questioned and accused of being an anti-regime infidel and bashed by the Sepah officers who kicked, punched and bashed his heads against the walls while asking him to sign a blank piece of paper. He told the Tribunal that while he was in his cell he often heard other detainees calling out for help and/or screaming in pain during their interrogations and beatings. He explained that after about 7 days in detention he had been asked to sign a ‘letter of commitment’ which provided that he would not contact the interviewer from [Employer] and after signing that document he was released from detention.
He told the Tribunal that when he returned home his wife and family expressed shock at his physical condition and because of their concerns he had decided to not provide them with any specific details of his treatment in detention. However, he said it was obvious to his family given his physical and psychological condition that he had been assaulted and otherwise tortured. He said that he found himself unable to leave the house or to talk to his family about his detention and he became very detached, isolated and depressed.
It was his evidence that about a fortnight after his release from detention that Sepah officers came to his home. He explained that they detained him and took him back to ‘[Centre]’ where they put him in an interview room and left him there for four to five hours without questioning or further harming him before they releaseed him. He explained that this happened every ten and then every twenty days for the next ten months before he and his family left Iran.
He also told the Tribunal that since leaving Iran he had maintained contact with his family through his father who had told him that the Sepah had and still periodically attend his family’s home and ask about his whereabouts and whether and when he will be returning to Iran.
Under further questioning, he explained he did not know any further details of what the Sepah officers had been asking his family as he and his father had limited their conversations about this issue as they suspected the family’s phone may have been and continues to be monitored by the Sepah.
The second applicant told the Tribunal about the shock she had experienced when she saw her husband return home from his period of detention after his job interview. She explained that her husband to date has not told her about any of the details of his detention, but she had seen his broken [Body part], head injuries and many bumps all over his body when he had returned home from being detained by the Sepah.
She also told the Tribunal of the regular visits to their home by the Sepah and how they would take her husband away for many hours before releasing him unharmed. She further stated that she was aware of the periodic visits from the Sepah to the first applicant’s family home where these officers asked about the applicants. However she told the Tribunal that her own family had not in her regular phone calls to them reported that any officials had attended upon her family making similar inquiries as to the applicants.
In discussions with the applicants and their solicitor as to the DFAT country information that the Tribunal had identified as relevant, which is outlined below, the applicants accepted same and made no further comment as to same.
Country information
The Tribunal has taken into account the DFAT Country Information Report Iran, 24 July 2023, as relevant, including ‘Mental Health’ at 2.22 and 2.23 where at 2.22 it is reported that:
Mental health services are provided as part of the mainstream health services available to all Iranians. However, according to a 2021 study published in the Iranian Journal of Psychiatry, the Iranian Mental Health Survey indicated almost one in four people had one or more psychiatric disorders (23.6 per cent); two-thirds of patients did not benefit from health interventions; and many provided services were inadequate and imposed a high burden on Iranian families. As in many countries, stigma is a significant barrier to seeking treatment. While mental illness has, to date, not been considered a legitimate medical condition, and people living with mental illness have been expected to ‘tough it out’, there are signs that this is changing – at least in the more progressive parts of Iran. Stigma can include difficulties in relationships, prejudicial attitudes including social discrimination, or societal acceptance and approval of such discrimination. Families will typically hide the fact that a member is living with a mental illness and will isolate them socially; families may also physically restrain the individual. Private services are available, especially in Tehran, but are expensive.
Under the heading of ‘Arabs’ at 2.48 to 2.52 where at 2.50 and 2.52 it is reported that:
In October 2018, the authorities launched a major security sweep in Khuzestan Province following a deadly terrorist attack on a military parade in Ahwaz which killed 29 people. Freedom House claims up to 800 people were arrested in relation to the attack, some of whom were reportedly executed. DFAT is unable to verify these claims. DFAT understands some of those arrested were subsequently released.
DFAT assesses that Arabs are not specifically targeted for official discrimination based on their ethnicity, including access to government services, and are afforded the same state protections as other ethnic minorities. However, since the September 2018 terrorist attack, closer scrutiny has been applied to Arabs and Arabs who are politically engaged are likely to be watched closely (see Political Opinion (Actual or Imputed)). Furthermore, Arabs were among Iran’s ethnic minorities who joined protests following the death of Mahsa Jina Amini. DFAT assesses that those who advocate for greater rights and autonomy, or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.
Under the heading of ‘Christians’ at 2.79 to 2.88 where at 2.88 it is reported that:
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.
‘Political Opinion (Actual or Imputed)’ at 2.103 and 2.104 where at 2.104 it is reported in part that:
According to the US Department of State’s 2021 Human Rights Report on Iran, opposition political parties do exist, however tend not to have wide reach and may be centred around an individual. Political parties which comply with the system and do not offend the government’s ideology generally operate without interference. However, members of political groups whose ideology opposes the state can be subject to arrest, intimidation and bureaucratic harassment.
“Women’ at 2.129 to 2.144 where at 2.144 it provides that:
Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.
As to the heading of ‘Torture’ at 2.176 to 2.179 it is reported at 2.177 to 2.179 that:
Despite these legal protections, international human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. The US Department of State 2021 Human Rights Report notes torture is especially practised in pre-trial detention and can include threats of execution or rape, forced vaginal and anal examinations, sleep deprivation, suspension, forced ingestion of chemical substances, deliberate lack of medical care, electric shock (including to the genitals), burnings, use of pressure positions and severe and repeated beatings.
Political prisoners are at particular risk of torture, especially those held in pre-trial detention, as torture may be used to extract confessions. Prisons, including unofficial secret prisons, may also be the site of torture, according to human rights groups. People who violate dress codes or drink alcohol face a low risk of torture.
DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.
Under the heading of ‘Islamic Revolutionary Guards Corp (IRGC)’ at 2.187 and 2.188 where at 2.187 it is reported that:
The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. The IRCG was established as a guardian of the 1979 revolution’s values and played a key role in the early days of the Republic. It is now Iran’s preeminent internal and external security force with an army, navy and air force, which it operates separately from the regular military, and also has cyber and intelligence wings. The IRCG’s associated companies in the banking, communications, construction, shipping and other sectors play a significant role in the economy. There are around 150,000 to 200,000 members of the IRGC across various divisions.
And under the heading of ‘Treatment of Returnees’ at 2.202 to 2.204 it is reported at 2.203 and 2.204 that:
In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. (See also Media.) Iranians have left the country in large numbers since the 1979 revolution, and authorities accept many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.
FINDINGS AND REASONS

The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal found that the first and second applicants’ evidence at the hearing was consistent with their earlier Statutory Declarations and the submissions of their representatives, RAILS.
The first applicant although clearly distressed at times when recounting his interrogations and beatings by the Sepah provided a detailed account of his experiences whilst detained in response to questions from the Tribunal. The Tribunal having observed the first and second applicants give their oral evidence and answer the Tribunal’s questions during the hearing finds that the first and second applicants were reliable historians and credible and honest witnesses.
Race and Actual and/or imputed political opinion
The first and second applicants claim that they will face harassment, monitoring, mistreatment, arrest and torture if they return to Iran on account of the first applicant’s Arab ethnicity.
The first and second applicant rely upon the first applicant’s treatment by [Employer] and the Sepah when he applied for a [position] at [Employer]’s Ahwaz office. The first applicant’s evidence was that he was denied the position because [Employer]’s interviewer had determined that he was an Ahwazi Arab who the interviewer determined was unsuitable for the position because of his race. He was later detained, interrogated and tortured by members of the Sepah (Revolutionary Guards Intelligence Service) over a period of 7 days where he was accused of being an infidel, disrespecting the Supreme Leader and talking against the regime by asserting his rights as an Arab.
Noting the DFAT country information as outlined above at paragraph 51 under the heading of ‘Arabs’ which provides in part that: ‘DAFT assesses that Arabs are not specifically targeted for official discrimination based on their ethnicity, including access to government services, and are afforded the same state protections as other ethnic minorities’…And that: ‘DFAT assesses that those who advocate for greater rights and autonomy, or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment’. The Tribunal having accepted that the first applicant had been accused by the Sepah of advocating for Arab rights in his failed job interview. That he had then been arrested, detained and tortured over a 7 day period before being released, and then subjected to regular periodic detentions, is satisfied that the first applicant did gain an adverse profile with the Iranian authorities as an advocate for Arab rights.
Notwithstanding the passage of time since the first applicant’s altercation with [Employer]’s interviewer and his arrest, detention and torture by the Sepah and given the ongoing and regular enquiries with his father and family as to his current whereabouts and intentions as to returning to Iran. The Tribunal accepts that the Sepah have maintained at least a local if not now national interest in the first applicant and his family given their view that he is an advocate for greater Arab rights and an anti-regime dissident.
In regard to this imputed political opinion that the first applicant has attained from his failed job interview at [Employer], it is accepted that he is most likely still of interest to the Sepah and the Iranian authorities because of his anti-regime profile which was attributed to him because of his questioning as to why as an Arab he was not suitable for employment with [Employer].
Noting the DFAT country information as outlined above at paragraph 51 under the heading of ‘Political Opinion (Actual or Imputed)’ which in part provides that: ‘However, members of political groups whose ideology opposes the state can be subject to arrest, intimidation and bureaucratic harassment’ the Tribunal is satisfied that firstly, the first applicant has attained and is likely to still be viewed now as a member of a political group that is advocating for Arab rights and secondly as such a person who has and continues to oppose the state.
Therefore, when considering the cumulative effect of the first applicant’s profile with the Iranian authorities which may have originally been a local Ahwazi profile but is now most likely a national profile of being an Arab who has and is advocating for better rights and an anti-regime dissident, the Tribunal does accept that the first applicant faces a risk of serous harm if he were to return to Iran.
As such the Tribunal finds that the first applicant does face a real chance of persecution involving serious harm on account of his race and his actual and/or imputed political opinion if he was to return to Iran in the reasonably foreseeable future. Further given the Sepah is a national Intelligence organisation the Tribunal accepts that the first applicant cannot relocate within Iran to avoid such harm, nor can he rely upon state security services to provide protection to him as they are the institution that are likely to do harm to him if he was to return to Iran.
The Tribunal finds that the applicants’ fears in this regard, as to the first applicant’s race and actual and/or imputed political opinion are well-founded.
Religion
The applicants claim that given the first applicant’s conversion to Christianity in Australia that he will face harassment, monitoring, mistreatment, arrest and torture if he was to return to Iran.
The tribunal has considered the DFAT country information which is outlined above at paragraph 51 and provides in part that: ‘DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from a more religious-minded Muslim family background.
After considering the first applicant’s ‘s 56’ reply to the department as to his conversion to Christianity and noting that his responses included his statement that: ‘it wasn’t so much that something made me dislike Islam. It was what I witnessed in Christianity that made me want to change religions – true love, compassions, kindness, humanity, mercy and support. I hadn’t experienced that in my life time in Islam, which seemed to me to be more concerned with wrath, judgement and hardness’; the Tribunal accepts that the first applicant has genuinely converted to Christianity on account of his experiences with the Church in Australia.
However, given the second applicant is still a Shi’a Muslim and there was no evidence before the Tribunal to suggest that the first applicant’s conversion to Christianity is widely known or known outside of his own immediate family the Tribunal is not satisfied that the first applicant’s conversion to Christianity has been revealed and/or would likely be known in Iran if the applicants were to return to Iran in the reasonably foreseeable future.
Therefore, the Tribunal finds that the first applicant does not face a real chance of persecution involving serious harm if he was to return to Iran in the reasonably foreseeable future on account of his conversion to Christianity.
The applicant’s fears in regard to the first applicant’s conversion to Christianity are not well-founded.
Mental health
During the applicant’s review process their solicitor provided a series of medical letters from the first applicant’s general practitioner and treating psychiatrist. The letters from his psychiatrist did not provide the basis for or any forensic information as to how he had been diagnosed but for stating that he had been assessed ‘on a few occasions since 22 Oct 2019 for a Severe Anxiety disorder with psychosomatic features with a background of trauma from overseas’. And that: ‘He is currently on Sodium Valproate 500mg BD, Citalopram 40mg and Risperidone 1mg and had psychotherapy’. Therefore, the Tribunal has considered his mental health and the availability of appropriate treatment for him in Iran.
In that regard, the Tribunal has considered the DFAT country information as outlined above at paragraph 51 under the heading of ‘Mental Health’ which in part provides that: ‘Mental health services are provided as part of the mainstream health services available to all Iranians… As in many countries, stigma is a significant barrier to seeking treatment. While mental illness has, to date, not been considered a legitimate medical condition, and people living with mental illness have been expected to ‘tough it out’, there are signs that this is changing – at least in the more progressive pat of Iran’.
Therefore, the Tribunal finds that notwithstanding the first applicant may experience some societal discrimination on account of his mental illness and him seeking appropriate treatment for his disorders in Iran, such discrimination would not amount to persecution involving serious harm.
As such the Tribunal finds that the first applicant does not face a real chance of persecution involving serious harm on account of his mental illness if he was to return to Iran in the reasonably foreseeable future.
The applicants’ fears in regard to the first applicant’s mental illness and disorders are not well-founded.
Women
Although the applicants have not made a claim as to the second and third applicants being women the Tribunal has considered this issue.
Noting the DFAT country information as outlined above at paragraph 51 provides in part under the heading of ‘Women’ that: ‘Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the induvial circumstances of each woman. DFAT assesses most Iranian women face a moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence’.
Therefore, given the first and second applicants did not report that the second applicant who is a Shi’a Muslim and has not converted to Christianity had experienced any such discrimination in Iran for being a woman. The Tribunal is satisfied on the evidence before it, that the second and third applicants may in the future if they were to return to Iran, face some societal discrimination for being women, but as they have male protector, the first applicant, such discrimination would not amount to persecution involving serious harm.
The Tribunal finds that the applicants do not face a real chance of persecution involving serious harm if they were in the reasonably foreseeable future to return to Iran on account of the second and third applicants being women.
The applicants’ fears in regard to, the second and third applicants being women, are not well-founded.
Failed asylum seekers - returnees
The applicants claim that they will be harassed, monitored, imprisoned, mistreated, arrested forced to confess and tortured if they return to Iran on account of being failed asylum seekers returning from the west.
The Tribunal notes that the relevant DFAT country information as outlined above at paragraph 51 provides in part under the heading of ‘Treatment of Returnees’ that: ‘DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination’.
As the Tribunal has found that the first applicant does face a real chance of persecution because of his race and his actual and/or imputed political opinion as discussed above at paragraphs 60 to 68. The Tribunal equally, given the country information as discussed above, accepts that the first applicant, having attained an adverse profile with the Iranian authorities would face the likely prospect of arrest, detention and torture on account of the combination and accumulation of his racial, political and returnee profile.
Therefore, the Tribunal finds that the fist applicant does face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to Iran on account of being a failed asylum seeker returning from the west.
The applicants’ fears in this regard as to the first applicant being a failed asylum seeker returning from the west are well-founded.
Refugee criterion
The Tribunal, having considered all of the applicants claims both individually and cumulatively, does accept that the first applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race and his actual and/or imputed political opinion and being a failed asylum seeker returning from the west in all areas of his receiving country, Iran: s 5J(1)(c). The Tribunal also finds on the evidence before it that the first applicant in this regard cannot rely upon the Iranian authorities in to provide protection to him and the other applicants and as such there are not effective protection measures available to the first applicant and the other applicants from the Iranian authorities: s 5J(2).
Therefore, the Tribunal finds that the first applicants’ fears of persecution arising from his race and his actual and/or imputed political opinion and being a failed asylum seeker returning from the west are well-founded as required by s 5J of the Act, and therefore, the first applicant is a refugee within the definition of s 5H of the Act.
Having found that the first applicant is a refugee the Tribunal has also considered whether the applicants have a right to enter and reside in another country other than Australia. The Tribunal finds that the applicants do not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Additionally, as the other applicants are the first applicant’s wife and dependant minor child of the first and second applicants, the Tribunal is satisfied that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Complementary protection
Having concluded that the first applicant does meet the refugee criterion in s 36(2)(a) of the Act, and that the other applicants satisfy s 36 (2)(b)(i) of the Act on the basis of membership of the same family unit as the first applicant, the Tribunal has not considered whether the applicants are eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
David James
Senior 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.
…

[2023] AATA 4320

18 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies