1903163 (Refugee) - [2023] AATA 3604

1903163 (Refugee) [2023] AATA 3604 (8 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:1903163
2104733

COUNTRY OF REFERENCE: Iran
MEMBER:Brendan Darcy
DATE:8 August 2023
PLACE OF DECISION: Melbourne
DECISION:For case number 1903163: The Tribunal affirms the decision made by the delegate of the Minister on 7 February 2018 not to grant the applicant a protection visa.
For case number 2104733: The Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 6 October 2020 was not valid.

Statement made on 08 August 2023 at 9:44am
CATCHWORDS
REFUGEE – protection visa – Iran – arrived in vicinity of the Territory of Ashmore and Cartier Islands – first visa application valid – adulterous relationship – complaint lodged – summons – credibility issues – no evidence – inconsistencies – involuntary failed asylum seeker or forced returnee – voluntary return – criminal offence in Australia – good behaviour bond – double jeopardy – past punishment during compulsory national service – physical and mental health symptoms – second visa application set aside as invalid – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A, 48AA, 48B, 65, 91K, 195A, 425, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
DFO19 v MICMSMA [2023] FCAFC 38
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 a combined decision for review applications numbered 1903163 and 2104733.
Two separate decisions made by delegates of the Minister for Home Affairs to refuse protection visas under s 65 of the Migration Act 1958 (Cth) (the Act) were made on 7 February 2018 and 8 April 2021. Both decisions pertain to the same applicant for Class XD Subclass 785 protection visas.
The applicant, who claims to be a citizen of the Islamic Republic of Iran (Iran), was born on [date] in Iran’s East Azerbaijan Province.
In relation to the first visa application, on 7 February 2018, the delegate acting on behalf of the Minister did not find credible the applicant’s claims about an extramarital affair or his fears of persecution in Iran for these reasons to be genuine.
In relation to the second visa application, on 8 April 2021, the delegate refused to grant the visa on the basis that the applicant’s critical claims about an adulterous relationship lacked overall credibility.
Background
With any valid visa or official permission, the applicant arrived in the vicinity of Australia’s Ashmore and Cartier Islands territory in the Indian Ocean [in] September 2012 on a boat labelled [name]. The applicant was allocated the alphanumeric identity or ‘Boat ID’ [deleted].
Having been intercepted by Australian officials, the applicant was subsequently taken to Darwin and placed into immigration detention. Later, the applicant was interviewed on 19 October 2012. A copy of the audio file is in the applicant’s Departmental file ([deleted]).
According to the record of the arrival interview, the applicant indicated the reason he departed Iran was because his life was in danger as he was in a relationship with a married woman. Asked what the applicant thought would happen to him on return to his country of nationality, the applicant responded that, because of his problem, the authorities would execute him.
[In] December 2012, the applicant was granted a Class UJ Subclass 449 (Temporary Humanitarian Stay) visa as a result of a Ministerial intervention outcome under s 195A of the Act.
On 13 December 2012, the applicant was granted a bridging visa which was valid until 6 June 2013 and was released from detention. On 7 June 2013, the applicant became an unlawful non-citizen in Australia until he was granted a further bridging visa on 24 June 2013.
On 14 August 2013, the applicant lodged a Class XA Subclass 866 Protection visa; however, the application was declared invalid due to the operation of a bar under s 91K of the Act.
The applicant became unlawful between 27 December 2013 and 24 June 2014 when the Minister intervened to lift the bar under s 46A. On 4 December 2015, the applicant was invited by the Department to apply for one of the subclasses of temporary protection visa.
Background to the first visa application
The applicant remained either unlawful or had a bridging visa in the community until he validly applied for a Class XD Subclass 785 (Temporary Protection) visa after a s 46A bar was again lifted through Ministerial intervention. The date of application was 10 August 2016. The applicant was subsequently granted an associated bridging visa on 25 August 2016.
On 2 August 2016, the applicant signed a statutory declaration and provided it with his temporary protection visa application. On 12 July 2017, the applicant was interviewed by the Department in relation to his claims for protection. This evidence is outlined later in this decision.
On 7 February 2018, a delegate refused to grant the applicant a protection visa.
On 13 February 2018 the refusal decision was referred to the Immigration Assessment Authority (IAA).
On 30 November 2018, IAA wrote to the applicant indicating that his case (reference number: IAA18/04341) had been referred in error after the IAA had been advised by the Department of Home Affairs following the Federal Court judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. In that decision it was determined that the applicant did not enter Australia at an ‘excised offshore place’ for the purposes of the Act. As a result, the applicant was not an irregular or unauthorised maritime arrival within the meaning of the Act and the decision for review was not a ‘fast track reviewable decision’.
As the Department’s notification of the refusal decision was defective, the review application was accepted as valid by the Tribunal on 12 February 2019. It was allocated the AAT case number 1903163. The decision record was attached to the application for review.
Background of the second visa application
The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.
Following this, the applicant purported to make a second application for a Class XD Subclass 785 visa on 20 October 2020.
On 5 March 2021, the applicant was interviewed by the Department in relation to his claims for protection. This evidence is outlined later in this joint decision record.
This second visa application was later refused by a delegate on 8 April 2021.
An application for review of that decision was made on 14 April 2021 with the delegate’s decision notification letter and decision record attached. It was allocated the AAT case number 2104733. The decision record was attached to the application for review.
Scheduled hearings
On 1 February 2023, both review applications were constituted to this presiding Member. The Member invited the applicant to a scheduled hearing on 14 March 2023. The invitation letters indicated that the hearing will be a combined hearing for review applications 1903163 and 2104733.
The applicant appeared before the Tribunal on 14 March 2023 to give evidence and present oral arguments. At the end of the hearing, the applicant was provided with a post-hearing opportunity to submit any further evidence to support his claims for protection.
On 27 June 2023, the Tribunal wrote to the applicant indicating that the Member has been provided legal advice that the second visa application pertaining to the applicant is, and always was, barred under s 48A. Accordingly, that application appears to be invalid, and the Tribunal has no option other than to set aside the delegate’s decision and substitute it with a decision that the second visa application is invalid.
The same letter was raised with the applicant to consider the authority of the Tribunal’s approach given it had been upheld in DFO19 v MICMSMA [2023] FCAFC 38 by the Full Federal Court of Australia (FFCA). The FFCA dismissed application for judicial review of the decision by the AAT. The letter further stated the relevant claims and circumstances of the DFO19 and the applicant were similar as both arrived in Australia before the March 2018 Memorandum of Understanding (MOU) was signed between Australia and Iran. The implications of this authority are outlined in more detail below.
Furthermore, the 27 June 2023 letter said the scheduled hearing on 12 July 2023 was an opportunity to raise any issues relating to that information.
The applicant appeared again before the Tribunal at a second hearing on 12 July 2023. During the hearing, the Tribunal took care to explain the implications of the authorities. No further submissions were required.
Both hearings were also conducted with the assistance of an interpreter in the Persian (Farsi) and English languages.
The applicant was not represented by a registered migration agent or legal practitioner.
There were no non-disclosure certificates attached to the applicant’s Departmental files.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and claims for protection
The applicant claimed to be born in East Azerbaijan on [date].
Copies of identity documents, an unverified scanned copy of the applicant’s Iranian passport, are on the applicant’s Departmental files ([deleted]).
Claims raised in the first visa application
The applicant’s claims for protection and the evidence were first provided by the applicant in his first visa application. This application included a statutory declaration dated 2 August 2016 detailing his claims for protection. The following is a summary of the claims the applicant has made since his arrival in Australia:
·     The applicant also claims to be of Azeri or Azeri Turkish ethnicity; that he is a Shi’a Muslim but is not strictly observant and fears persecution as a non-practising Muslim;
·     The applicant met a woman named [Ms A] in early 2011 while he was shopping. They began a serious relationship. [Ms A] told him she was single, and he thought they intended to get married;
·     In late 2011, the applicant discovered that [Ms A] was married. While together one day, [Ms A]’s phone rang. He answered the call as she was not in the room. The caller asked who the applicant was and he replied he was a friend of [Ms A] and said that they were in a relationship and they intended to get married.
·     The applicant asked the caller who he was. The caller said that he was [Ms A]’s husband.
·     [Ms A]’s husband confronted his wife. She said that she wanted a divorce but her husband would not agree. The applicant then ended his relationship with [Ms A].
·     The applicant spent the next year living in fear. Over the next six months, [Ms A] would call him at least once a week, telling him that she had applied for a divorce. She told him that her husband did not accept it and would beat her to change her mind and to obtain information about his whereabouts so he could lodge a complaint for adultery. She told him that she refused to give her husband his details. He fears that the authorities would execute him.
·     As suggested by [Ms A], the applicant paid money to her to give to her husband so that he would give up trying to locate the applicant. The applicant paid a few times but [Ms A]’s husband did not stop looking for him. This happened over about a six-month period following their breakup until early 2012.
·     Eventually the applicant refused to pay more money. [Ms A] continued to call him until he stopped answering her calls.
·     Becoming depressed because of the fear and stress from the situation, the applicant left his job as he could not focus on anything.
·     The applicant feared the law – not just the woman’s husband.
·     In August 2012, [Ms A] told him by phone that her husband has figured out his identity, where he lived and would take him to court.
·     [Ms A] said she could no longer bear her mistreatment and would have to give his details to her husband. The applicant had no choice but to flee Iran.
·     The applicant completed his military service in 1996. He was detained once following his service. While on service, he had permission to take a day off but he took a week off. He was sentenced by a military tribunal to one month’s imprisonment in a military reprimand centre.
·     About two years ago, he was out drinking with a few friends in the city one night. They went to a restaurant where he found a purse on the ground. He took the purse, wanting to give it to the police but his friend told him to do so the next day. He was on the bus heading home when the police came looking for the purse. They knew because there was a mobile phone in the purse. He was taken to the police station where he stayed for a few hours. He was charged with public drunkenness and theft. He pleaded guilty and was imposed a one-year good behaviour bond.
·     He suffered from depression because of what happened with [Ms A]. He saw a psychologist once every four weeks and was taking medication. He is much better now but if returned to Iran, his mental health will greatly suffer.
While a number of identity documents were submitted, no corroborative material was provided about an ongoing complaint or warrant or summons in regard to the applicant’s claims of breaching a moral law in Iran when he was having an intimate relationship with a married woman in Tehran.
On 12 July 2017, the applicant was interviewed by the Department in relation to his claims for protection, with the assistance of an interpreter in the Farsi and English languages.
As mentioned above the delegate refused to grant the applicant a protection visa on 7 February 2018. On 12 February 2019, the decision was referred to IAA for merits review but was later lodged with the Tribunal with the decision record attached.
The 2018 decision record made findings that the applicant’s critical claims about adultery lacked credibility and overall claims that the applicant did not meet the criteria set out in

s 36(2)(a) and s 36(2)(aa) as a failed asylum seeker.
Claims raised in the second visa application
As outlined above, in October 2020, the applicant applied for another Subclass 865 visa. On the related Departmental file is a copy of the applicant’s second protection visa forms (Forms 866B, 866C and 80).
The Department received a two-page handwritten letter dated 29 October 2020 which outlined his claims about an adulterous affair that took place in 2011 and 2012, the reasons for his departure from Iran and his fear of returning to that county.
On 15 March 2021, the applicant attended a further Departmental interview during which relevant information which the Department considered would be the reason, or part of the reason, for refusing to grant the visa was put the applicant in accordance with s 57 of the Act, which included claims mentioned in the entry interview and in the 2016 statutory declaration outlining his detailed claims.
On 23 March 2021 the applicant was notified by the Department that his second visa application had been refused. When the applicant applied to the Tribunal to have that refusal decision reviewed on 8 April 2021, a copy of the delegate’s decision record was attached.
The Tribunal notes the decision record indicates that the applicant raised with the Department very similar elements to the dispositive set of claims for protection about an adulterous relationship, although there were no details of him having sent payments to his ex-intimate partner or that the applicant had been seeing a mental health professional in Iran as well as Australia, and that he had committed an offence in Australia in 2013. This 2021 decision record made findings that the applicant’s critical claims about adultery lacked credibility and overall claims that the applicant did not meet the criteria set out in s 36(2)(a) and s 36(2)(aa) as a failed asylum seeker.
Evidence before the Tribunal

As detailed above, the applicant applied for both of his refused decisions to be reviewed by the Tribunal and the applicant attended two scheduled hearings.
At no time did the Tribunal receive any submissions or additional evidence about the applicant’s claims for protection in relation to either visa applications, either before or after each hearing, including right up to the time of making these decisions.
Country information: Iran
The Tribunal has taken into account the two most recent DFAT country information reports dated 14 April 2020 and 24 July 2023. Below is an extract from the country information report dated 24 July 2023 about the political system in Iran:
2.29 Iran is a theocratic republic, established under the principle of Velayat-e faqih (‘guardianship of the jurist’). Under this principle, an Islamic jurist (the Supreme Leader) makes final policy decisions. While the President is technically the head of state, the Supreme Leader is the highest power in the land, and the commander of its armed forces. The Supreme Leader is responsible for setting overall state policy and has significant influence over foreign policy and national security. The Supreme Leader appoints the head of the judiciary, half the members of the Guardian Council and all members of the Expediency Council (see below). The Supreme Leader can annul any bill passed by parliament and must approve any constitutional changes. The current Supreme Leader, Ayatollah Ali Khamenei, assumed the role in 1989, following the death of the Islamic Republic’s founder, Ayatollah Ruhollah Khomeini.
2.30 Iran’s political system is a combination of elected and unelected institutions. Elections are held regularly for president, parliament, local councils and the Assembly of Experts. The Supreme Leader and members of the Guardian Council and the Expediency Council, where most power is concentrated, are not popularly elected.
2.31 The Assembly of Experts, comprising 88 clerics, is elected for eight-year terms by popular vote. It selects the Supreme Leader and has the constitutional power to remove them from office should they be unable to perform their duties. In practice, the Assembly of Experts has never challenged the Supreme Leader’s authority
ASSESSMENT OF CLAIMS AND FINDINGS
Identity and country of reference
On arrival in 2012, the applicant provided a number identity documents to demonstrate his claimed identity, nationality or citizenship. During the interview with the Department in 2017, the applicant has submitted various documentary evidence of his identity, nationality and citizenship which are in the Departmental file ([deleted]). This included originals of the applicant’s Shenasnameh (identify booklet), Iranian National Identity Card, compulsory military service discharge Card and driver’s licence (each with certified translations into English, and a copy of the applicant’s Iranian passport. He claimed to depart Iran while holding a valid Iranian passport.
With no evidence to the contrary, the Tribunal accepts the applicant’s claimed identity and nationality and that he is a citizen of the Islamic Republic of Iran.
For the purposes of the refugee criterion, s 5H (1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The Tribunal is satisfied on the basis of this evidence and his testimony that the applicant is a national of Iran, and that Iran is the receiving country for the purposes of the legislation.
Third country protection
There is no suggestion that there is any existing right for the applicant to enter and reside in any third country, either temporarily or permanently, for the purposes of s 36(3) of the Act.
First visa application: 1903163
For the following reasons, the Tribunal has concluded that the decision under review as it pertains to the first review application 1903163 should be affirmed. The decision has taken into account the evidence provided to the Department in relation to both the first and second visa applications and the evidence as it has arisen in combined hearings for both matters.
With regard to the second visa application, the Tribunal has determined to set aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 6 October 2020 was not valid. The reasons for this are outlined below.
Claims arising from being an involuntary failed asylum seeker or forced returnee
The applicant arrived in Australia in December 2012. In writing and during the second hearing, the Tribunal explained to the applicant that the authorities in Australia could not compel him to return to Iran and should he return to Iran it would be voluntarily, and the authority on which these facts were based.
On 19 March 2018 Iran and Australia signed an MOU on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.[1]
[1] DFAT country information report on Iran, 14 April 2020 p.70.
Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’
In having regard to this, the Tribunal invited the applicant’s representative to consider the authority of this approach given it had been upheld in DFO19 v MICMSMA [2023] FCAFC 38 by the FFCA. The FFCA dismissed the application for judicial review of the decision by the Administrative Appeals Tribunal. DFO19 claimed, among other things, to face harm as a failed asylum seeker. The applicant in that matter said during the Tribunal hearing that he ‘cannot return voluntarily’ to Iran. In considering whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran under s 36(2)(aa) of the Act, the Tribunal considered the prospect of both involuntary and voluntary return. It concluded the Iranian government would not revisit its practice of not accepting involuntary returnees who arrived in Australia before 19 March 2018, the date of an MOU between Iran and Australia facilitating return of Iranians who arrived in Australia after this date with no legal right to stay. The Tribunal considered the Department would not return him involuntarily. If he persisted in not returning voluntarily, he would not return and as such would not face a real chance of serious harm (for the purposes of s 36(2)(a)) or a real risk of significant harm. The Tribunal in that matter also considered the circumstances if he were to return voluntarily, taking account of the circumstances he would face, found he did not face a real chance of serious harm or real risk of significant harm. The FFCA found no jurisdictional error.
The relevant claims and circumstances of the DFO19 and the applicant were similar as both arrived in Australia before the above-mentioned MOU was signed. Therefore, if his claims for asylum were unsuccessful, the applicant would be faced with the choice of either indefinite detention in Australia or voluntary return to Iran.
Based on this authority and the relevant facts that the applicant will not be forced to return to Iran for the foreseeable future, the Tribunal finds that the applicant does not face the prospect of facing a real chance or a real risk of being an involutory returnee and therefore, being subjected to the kinds of interrogations on arrival that Iranian failed asylum seekers are typically subjected to and during which incriminating or negatively implicating information about the applicant’s sur place activities can be discoverable by the authorities.
As such, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being a failed asylum seeker returning to Iran, even when cumulatively considering his ethnicity, his religion, his political opinion, imputed or actual, or any other reasons mentioned under s 5J(1)(a). Neither are there any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his country of reference, there is a real risk of significant harm of any kind mentioned under s 36(2A) arising from the applicant being a forced returnee or a forced failed asylum seeker.
Voluntary return
Alternatively, the Tribunal has also considered the circumstances if the applicant was to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including his extended period abroad, either on arrival or in the Iranian community.
The Tribunal has considered country information about asylum seekers from the earlier 2020 DFAT report. According to some international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report those Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.[2]
[2] DFAT country information report on Iran, 14 April 2020 p.70.
In the most recent country information report on Iran, 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.
This country information indicates that the authorities will have even less interest in voluntary returnees from Western countries on arrival.
The applicant entered Australia without a valid visa in late 2012 and has validly applied for a protection visa in 2016. To date, the applicant has remained in Australia for over 10 years which is a substantial amount of time. There is no evidence with the Department, written, oral or otherwise, that the applicant claimed to be politically active in Australia, although he fears his time in Australia would attract adverse attention on arrival.
The Tribunal enquired about his fears as a returnee based on his political opinion. While he said that he feared the authorities would take his mobile phone and find that he had accessed media sources critical of the regime, he explicitly said he had not posted anything on social media. The Tribunal reminded the applicant that he would be voluntarily returning under which circumstances there would only be a remote chance or risk the applicant would adversely attract the attention of the authorities for his political opinion or as a failed asylum seeker, as accessing such sites did not pose any meaningful risk to the Islamic Republic. Nonetheless, the applicant expressed his fears because he was aware of a journalist being arrested on return. The Tribunal pointed out that the applicant was not a journalist or involved in any reporting or commentary.
In these claims he has not advanced any claims about being a critic of Islam or engaged in public protests or political movements against the Islamic Republic or that he had a social media presence that includes criticism or denunciations against Iran’s leadership, its national religion or any of the policies which attract negative or adverse comment by Iranian dissenters or Western countries, more generally. Notably he does not claim to be an apostate from Shi’a Islam to another religion or even any religion at all.
The Tribunal, nonetheless, accepts the applicant should he voluntarily return to Iran, faces a chance of being imputed as an individual who has perceived links to Western countries or that he holds political opinions which are critical of the Iranian authorities or Shi’a Islam. This could occur on arrival or while the applicant is in the community in his home area or anywhere within Iran.
However, those chances of being questioned on arrival or in the community about activities considered sympathetic to Western governments or as someone who is hostile towards or motivated to act against the Islamic Republic or as someone who is an apostate from Islam or is a political critic of Iran’s leadership, laws or policies or considered a combination of any of these perceived threats to the authorities in Iran, for the essential and significant reason that the applicant has been in Australia for a considerable amount of time, are remote and far-fetched, and not real or substantial.
Given the applicant is not claiming to be a high-profile political dissenter or apostate and the abovementioned country information regarding failed asylum seekers, the Tribunal assesses that there is only a remote or far-fetched chance of interview on arrival as a voluntary returnee. In this regard, the applicant does not have a real chance of serious harm based on his perceived Western outlook or political opinion arising from his longevity in Australia in so far as it arises from his membership of a particular social group, Iranians who have spent considerable time in Western countries, should he voluntarily return to Iran into the reasonably foreseeable future.
It follows from this ‘real chance’ finding that there are no substantial grounds for the Tribunal to believe that the applicant, as a foreseeable and necessary consequence of his voluntary return to his home area, will suffer a real risk of significant harm based on his time spent in Australia or any related reasons based on his political opinions, imputed or otherwise, or religious outlooks or practices, imputed or otherwise.
In making that finding, the Tribunal is now required to consider whether Australia owes the applicant any protection obligations while in the community or for some other salient aspect of the applicant’s circumstances, should the applicant return on a voluntary basis as it arises under s 36(2)(a) and s 36(2)(aa).
Credibility concerns and findings
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Accepted personal circumstances
As outlined below, the Tribunal has made a number of adverse credibility findings about the applicant’s dispositive claims for protection.
The Tribunal, nonetheless, accepts the following aspects about the applicant’s personal circumstances to be credibly and consistently put to both the Department and the Tribunal:
·     The applicant was born in Iran’s East Azerbaijan province in [month year];
·     The applicant was brought up in Tehran where he has [brothers] and [sisters];
·     The applicant is from a Shi’a Muslim background and his ethnicity is Azeri (this ethnicity is also referred to as Azerbaijani or Azeri Turk);
·     The applicant speaks, reads and writes Farsi and speaks some Azeri;
·     The applicant completed secondary school in [year];
·     The applicant undertook and completed compulsory military service between September 1994 and October 1996;
·     The applicant undertook international travel to [Country 2] in 1996 on two occasions; and
·     The applicant travelled to[Country 1] in 2001 as part of [an] export business, however the applicant overstayed his one month visa until he was deported in 2004;
·     While the applicant was in [Country 1], he learned to speak and understand the [language].
·     Between 2004 and his departure from Iran for Australia, the applicant had been trading in [products] for a living. The applicant’s brothers were also in the [trade];
·     The applicant usually resided in Tehran right up to the time he departed from Iran in 2012;
·     The applicant departed Iran for Australia on a valid passport issued by the Iran authorities (and not illegally as indicated at Question 50 in the Form 8CC as part of his application for a protection visa); and
·     The applicant has never married or been engaged for marriage either in Iran, Australia or any other country. He does not have any children or dependents.
In making these findings, the Tribunal notes that the applicant was born in East Azerbaijan but was raised in Tehran where his family continues to reside. Accordingly, the Tribunal has considered metropolitan Tehran, the capital city of the applicant’s country of nationality and reference, to be his home area.
Credibility concerns arising from a claimed adulterous relationship
It is central to the applicant’s claims for protection that the events involving him being in an adulterous relationship and the persecutory implications of that relationship, including an outstanding summons for the applicant, had genuinely occurred.
By way of summary, the applicant’s dispositive or critical claim for protection is that he began a serious relationship in 2011 with a woman he presumed to be single. Her name was [Ms A]. However, six months into the relationship he discovered [Ms A] was married when he answered her mobile phone and spoke to her husband. [Ms A] explained that she wanted a divorce, but her husband would not agree. Although the applicant’s relationship with [Ms A] ended in early 2012, the applicant lived in fear should [Ms A]’s husband discover his name and threatened to lodge a complaint of adultery with the authorities. For a period of time, [Ms A] refused to provide his name to her husband. Afraid that the applicant might face capital punishment for the adulterous relationship, the applicant agreed to [Ms A]’s suggestion he forward money to her account to avoid her husband lodging a complaint over a six-month period. The applicant eventually refused to pay any more money and stopped taking [Ms A]’s calls. In about August 2012, [Ms A] called the applicant to warn him her husband discovered the applicant’s name and address and would take him to court for adultery. With his life in imminent danger, the applicant fled Iran.

According to the 2020 country information report prepared by DFAT, adultery in Iran is a criminal offence that can attract the death penalty. Under the Penal Code, a non-Muslim man is considered to have committed adultery when he has sexual intercourse with a Muslim woman, regardless of his marital status, and is subject to the death penalty. In contrast, a Muslim man must be married for the death penalty to apply. The punishment for adultery for a Muslim man with a Muslim woman is 100 lashes. The Penal Code does not specify any punishment for a Muslim man committing adultery with a non-Muslim woman. The Penal Code allows a man to kill his wife if she is caught in the act of committing adultery. Strict standards of proof are required to convict someone of adultery, including testimony from four eyewitnesses, and DFAT is not aware of the death penalty being applied in recent times.
The more recent 2023 DFAT report, while more limited in detail about adultery as a crime in Iran, describes it as one from a wide range of offences punishable by death, including murder, rape, drug possession and moral crimes that include adultery and same-sex sexual intercourse. Vaguely defined offences such as ‘insulting the prophet’, ‘enmity against God’ and ‘spreading corruption on earth’ (which can include blasphemy and heresy) also attract the death penalty.
The Tribunal accepts that the laws breaching moral crimes, including adultery, attract punishments which amount to persecutory harm for the purposes of s 5J(4)(b) and s 5J(5), and significant harm for the purposes of s 36(2A). However, the Tribunal has concerns about the credibility of this set of claims.
Of credibility concern to the Tribunal was the applicant’s account he discovered [Ms A] was married. The applicant has provided on a consistent basis in his written and oral evidence that he answered [Ms A]’s phone while she was in the shower or otherwise predisposed and that the caller disclosed to the applicant that he was the husband of the applicant’s lover and that this was the first time he had been aware of [Ms A]’s marriage. In the first departmental interview, the applicant has argued answering [Ms A]’s phone was not an invasion of privacy or unusual because they were really close, and she was his intimate partner. In the first hearing, the applicant explained that he was curious if she had someone else in her life and did so because she was his girlfriend. The Tribunal asked if she had given cause to the applicant to become suspicious, the applicant responded he had no other reason to answer [Ms A]’s phone call.
On the other hand, the applicant would also posit that he was not curious about [Ms A]’s relationship or marital status, even though [Ms A]’s behaviour would normally invite a romantic or intimate partner to suspect she had been evasive or untruthful.
The applicant had also provided a written account that [Ms A] had been [an occupation] for a company but did not tell him which company or have him visit her workplace. However, the applicant would liaise with [Ms A] at her rented one-bedroom apartment for intimate trysts. According to the applicant, the relationship was not open to any meaningful social recognition and the couple did not socialise with others or indicate to family members or friends they were in a relationship serious enough for the applicant to consider marriage to [Ms A]. However, according to the delegate’s decision, the applicant told the Department in the 2021 interview that he did not really ask but [Ms A] told him she was not working. The applicant provided testimony to the Tribunal that [Ms A] had been unemployed and lived with her parents. Later in the hearing, the applicant said he discovered this after the relationship broke down and that is what he meant. The applicant’s oral and written evidence over different points about [Ms A]’s work provided a confusing picture of what he knew and when he knew it.
Keeping these aspects of the applicant’s account in mind, the Tribunal was relatedly invited to consider credibility concerns arising from other irregular aspects of the development and breakdown of the applicant’s relationship that vary over the applicant’s retelling. For instance, the applicant’s written and oral account claimed [Ms A] had been [an occupation] for a company but did not tell him for which company or have him visit her workplace. However, the applicant would liaise with [Ms A] at her rented one-bedroom apartment where they met for romantic and intimate trysts. Although the applicant considered marrying [Ms A], she never visited his own house as he was living with his parents or visa versa. While the applicant described his former intimate partner as four years younger than him, when the Tribunal asked whether he knew [Ms A]’s last or surname, he said that he did not know and argued that it was something that would be revealed over time. The Tribunal notes the applicant told the Department in the 2021 interview that he was seven years older than [Ms A]. However, the applicant, as explored in more detail below, had disclosed to the Department that he had a digital copy of her name on a Shenasnameh, where her full name would be located.
Further oral evidence undermined the credibility of the overall claims because it was inconsistent with either the written claims and/or the evidence he provided the Department in a recorded interview. During the first scheduled hearing with the Tribunal, the applicant had informed the Tribunal she had been unemployed. When the Tribunal said that this appeared to be a discrepancy with his written account that [Ms A] had been employed as [an occupation], the applicant said that he meant to say that he found out from [Ms A] she was not employed after his discovery of the marriage. This response however undermined the credibility of the applicant’s claim that [Ms A] had a rented one-bedroom apartment – that would be very unlikely if she had no income. The applicant has responded that he later learned that the apartment had not been hers. This is not a totally implausible explanation but somewhat far-fetched.
Another credibility concern arose from the oral evidence at the first scheduled hearing when the Tribunal asked how the applicant’s former lover contacted him by phone. In this context, the applicant had claimed [Ms A]’s husband would not allow for a divorce and was abusive and physically violent. To protect the applicant, [Ms A] had deleted all the numbers on her mobile but had memorised the applicant’s mobile number and remained in contact via a public pay phone. The Tribunal pointed out that her husband could have called the applicant directly by finding his number in the log of past calls. The applicant variously claimed that the mobile phones are different in Iran and that her husband was not very technically capable. The Tribunal does not accept these to have been convincing explanations about this discrepancy.
One of the most concerning inconsistencies with which the Tribunal holds an adverse credibility concern was the applicant’s oral account to the Department that the applicant was ‘pretty sure’ [Ms A] had provided a copy of her own or her husband’s Shenasnameh to prove to the applicant that she was actually married. The Tribunal said that if [Ms A] had been contacting the applicant through a paid public phone, it would not be possible to send by text an attached photograph or image of the Shenasnameh. The applicant responded that perhaps there had been a problem with the interpreting. The Tribunal listened to the recording of the first interview by the department in 2017. The issue of Shenasnameh was explicitly raised in the context of being asked if he was sure [Ms A] was acting alone in extorting the applicant and was he even sure [Ms A] was married. The applicant said he had asked for evidence on the day of the last call he received from [Ms A] that her husband had discovered the applicant’s identity and to send it on the phone. The applicant further added in the evidence he received a copy of the page of a Shenasnameh to show she was married. There were no interpreting difficulties raised by the applicant in that part of the interview or even throughout the interview. The Tribunal does not accept there were any interpreting difficulties in relation this specific testimony. The Tribunal is confident the applicant provided a significant and identifiable discrepancy about whether his former lover married to another man had maintained contact with him and the changed testimony between the departmental interview and the first scheduled hearing has invited further credibility concerns about his overall dispositive claims for protection.

100. The Tribunal notes in the decision record for the second visa application, the interviewing official in the 2021 interview it was put to the applicant under s 57 of the Act, that the applicant mentioned in his entry interview that he was detained for one week for walking with a married woman with whom he was in a relationship but did not claim this in this current or the subsequent application for protection. The applicant responded, according to the decision record, he has no knowledge of this and that this past claim from 2012 may be a result of misinterpretation adding that he was not detained while walking with a girlfriend. Typically, the Tribunal would not rely on an entry interview to question the credibility of the applicant, however, the Tribunal listened to the audio file of the 2012 entry interview and could not identify any difficulties the applicant had in understanding the straightforward question put to him about past harm incidents or any of the other questions. In the context of the applicant claiming interpreting difficulties in a past interview where there was no credible reason to do so and the omission of such a significant claim as being detained for a week, the applicant has further invited the Tribunal to consider the overall credibility towards this specific claim as well as his overall claims about an adulterous relationship.
101. It has been and remains integral to the applicant’s claims that he cannot return to Iran due to the risk of him being apprehended on arrival or in the community arising from a lodged complaint against him for adultery and the severe punishments attached to that moral crime. In the first hearing, the applicant was unaware whether a warrant or summons had been issued at his residence which he shared with his parents because his parents moved residence at some point in the 12 months after he departed, and that neither he nor his family members back in Iran are in a position to know if the authorities had issued any summons or warrant. During the second hearing, the Tribunal followed up with the applicant enquiry from the first hearing whether he could provide a copy of any notifying summons or warrant or any lodged complaint by requesting his parents, for example, to approach the police or the courts for some documentary evidence of a complaint. The Tribunal also offered a period of time for the applicant to submit such documentary evidence. The applicant reiterated the claim about the change in residence and added his parents were elderly. The Tribunal enquired as to the reason the applicant has not attempted to obtain such supportive evidence, to which the applicant stated that he had never been asked to. Again, the Tribunal listened to the recording of the departmental interview. The applicant was clearly asked by the interviewing Departmental official whether his brothers could assist him with submitting evidence of the complaint. The Tribunal notes that the applicant explained to the Department that he is not even sure there is a current complaint or summons.
102. The Tribunal notes that the applicant has told family members that he travelled to Australia to work and that he did so validly. The applicant told the Department that he has not disclosed the adulterous affair or the claimed reasons he has sought asylum in Australia and did not want to cause family members anxiety about his status in Australia. The Tribunal accepts there may be a degree of embarrassment or stigmatisation in admitting these circumstances. However, in the context whereby the applicant claims to hold a subjective fear of persecution, then it would not only be reasonable or expected of the applicant to disclose these circumstances to his family but to urgently do so to avoid serious harm or significant harm in the form of cruel or inhuman punishment or capital punishment. Both the Department and the Tribunal have provided the applicant opportunities to submit evidence of any complaints to the authorities in Iran or any warrants or summons that would support his claims, however, the applicant has been wilfully evasive in his reasons for not doing so.
103. A few inconsistencies, irregularities or even embellishments do not amount to any set of claims to be found lacking in overall credibility or that salient substance of an otherwise credible set of critical claims cannot carry compelling weight.
104. However, on this occasion, the cumulative impact of the variances in retelling the matter and the unconvincing reasons for a lack of evidentiary corroboration has invited the Tribunal to question whether there is any overall credible basis, cumulatively considered, that the applicant had or continues to hold any genuine, deep or urgent fears or persecution or any credible or actual real risk of significant harm based on the claimed adulterous relationship set out above, either at the time of his departure from Iran or at the time of applying for both the first and second visa applications, during the Tribunal’s hearings, now or into the reasonably foreseeable future, should he return to Iran, voluntarily or otherwise.
Cumulative credibility findings regarding a claimed adulterous relationship
105. The applicant’s overall credibility is a matter of central importance in determining this review application’s critical claims that he is owed Australia’s protection obligations.
106. Outlined above are a number of adverse credibility concerns regarding the applicant’s claims about an adulterous relationship and fears of being harmed. Those concerns include inconsistencies and unconvincing arguments for them and a lack of corroborative evidence to support those claims despite being provided several opportunities to do so. While the Tribunal has considered whether the lack of consistency in these claims can be attributed to mental health conditions or the deterioration of memory over time, the Tribunal is not satisfied that this is the case in this matter.
107. When cumulatively considering these adverse credibility concerns, it is the Tribunal’s assessment that the applicant’s critical written and oral claims lacked overall credibility. It is in this context that it makes the following findings regarding the applicant’s critical claims of past events and his personal circumstances and the real chance of serious harm or real risk of significant harm, now and into the foreseeable future.
108. The Tribunal does not accept the applicant unwittingly entered into an adulterous relationship in 2011 while living in Tehran with a woman called [Ms A] or any other person. It does not accept the applicant was in this relationship for six months or any amount of time or that the relationship dissolved when the applicant discovered the woman in question was married and/or feared he would be subjected to a complaint by the woman’s husband leading to the applicant being prosecuted for adultery and facing severe punishments.
109. Neither does the Tribunal accept the applicant ever maintained contact with his claimed former intimate partner after the relationship broke down or that he was ever subjected to being compelled to pay money to the former intimate partner to avoid the cuckolded husband from making a complaint to the authorities or that he was extorted or that he fled the country when his capacity to forward extortion payments was diminished and he felt his arrest for adultery was imminent or that he feared any other kind of reprisals from the claimed betrayed husband.
110. Nor does it accept the applicant’s various arguments as to his incapacity or reluctance to provide any corroborative evidence of the relationship, the extortion or legal action taken against him, or that he provided convincing reasons about the quality of interpretating services to explain inconsistencies.
111. The Tribunal does not accept any of the characterisations, many of which differ over time, about the woman in question or about the applicant’s relationship and its breakdown to be credible as they have been assessed to be fabrications, and not merely embellishments of an otherwise credible set of dispositive claims. The fabricated claims were advanced solely for the purposes of decision makers providing favourable findings and to grant the visa.
112. It follows from this that the Tribunal does not accept the applicant held any genuine or urgent or deep subjectively held fears of persecution arising from these claims about breaches of moral laws in Iran, either at the time of their departure to Australia in 2012 or at any other time when the applicant provided evidence to either the Department or the Tribunal. Furthermore, the Tribunal finds that the applicant does not have any subjective or objective fears of persecution arising from the applicant being returned to Iran, either on a forced returnee or on a voluntary basis, either now or into the reasonably foreseeable future.
113. Neither does the Tribunal have any substantial reasons to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to his home area in metropolitan Tehran or in the Islamic Republic of Iran more generally, will face a real risk of serious harm based on the same assessment of these specific claims.
114.
Based on these adverse credibility findings, cumulatively considered, about the applicant’s dispositive claims, there is no reliable basis that the applicant satisfies either s 36(2)(a) or

s 36(2)(aa) in this regard.
115. In making these adverse credibility findings, the Tribunal has considered other aspects of the applicant’s accepted characteristics and circumstances that are saliently or residually relevant to his voluntary return to his country of reference without reference to his fabricated set of claims about adultery.
Non-practising Muslim
116. When the applicant applied for this valid protection visa, the applicant stated at Question 33 in the Form 866 that his religious identity was ‘Muslim Shi’a’. In the applicant’s 2016 statutory declaration, the applicant mentions his ‘Shi’a Muslim faith’ and did not mention he held a well-founded fear of persecution based on his religious beliefs or a lack thereof of one. During the 2021 interview, the applicant told the Department that he is a nominal Shi’a Muslim and did not go to the mosque, but otherwise prayed. The Tribunal notes the delegate made this finding on the basis that the applicant was a Shi’a Muslim who does not strictly observe his religion although the applicant did not explicitly claim he feared persecution on this basis. During the first scheduled hearing, the applicant indicated to the Tribunal that his religious affiliation was Shi’a Islam but did not raise the issue of religion as a basis for his claims for protection at either hearing.
117. The delegate in the first decision relied on country information indicating that a ‘senior research fellow in Iranian studies at a university in Germany’ advised ACCORD in August 2015 that ‘non-practising Muslims form a large part of the population of Iran’s cities. They lead normal daily lives and are rarely called upon to answer direct questions about Muslim religious practice and are rarely pressured to observe Muslim precepts.’[3]The delegate’s decision also cited the DFAT report in April 2016 which stated that it was ‘highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shi’a lslam.’[4]

[3] ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation September 2015’, Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), 1 September 2015. p.31, CISEC96CF13622.
[4] ‘DFAT Country information Report Iran April 2016’, Department of Foreign Affairs and Trade, 21 April 2016, p.14,C IS38A8012677.
118. The delegate in the second decision relied on a June 2014 Danish Immigration Service fact-finding mission report which included information from Elam Ministries,⁴⁴ who stated that ‘abstaining from Muslim rituals such as not attending mosque…would not necessarily arouse any suspicion as many in Iran do not regularly attend mosques.’⁴⁵ The same report also included information provided by Mansour Borji, advocacy officer of the Article 18 initiative of the United Council of Iranian Churches,⁴⁶ who stated that ‘Iran is quite a mixed society and that there is both a conservative group of people and a more secular group of people. Some people from the conservative communities pay more attention to public manifestation of religion such as participation in Friday prayers etc., whereas people from the more secular segment do not pay any attention to such public manifestations.’[5]
[5] ‘Update on the Situation for Christian Converts in Iran’, Danish Immigration Service, June 2014, CIS28931, p. 13.
119. The most recent DFAT country information report on Iran assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities.
120. Given the applicant has no profile in Iran or Australia as a Shi’a Muslim who is not sufficiently observant or is non-practising and given he would be returning to Tehran as his home area which is more secular than other parts of Iran, the Tribunal is satisfied that the applicant faces a remote or far-fetched chance, and not a real chance, of serious harm based on him being a Shi’a Muslim who is actually or is perceived to be non-practising, should he voluntarily return to his home area or Iran more generally.
121. It follows from this ‘real chance’ finding that there are no substantial grounds for the Tribunal to believe that the applicant, as a foreseeable and necessary consequence of his voluntary return to his home area, will suffer a real risk of significant harm based on his religion as a non-practising Shi’a Muslim.
Ethnicity
122. The applicant claims to be of Azeri or Azeri Turkish ethnicity which the Tribunal accepts.
123. The Tribunal notes that the delegate considered the applicant’s ethnicity stating that the applicant did not raise a subjective fear of harm for this reason, and he also did not raise any adverse experience while in Iran because of his ethnicity. The delegate went on to consider the country information about Azeri Iranians in the 2020 DFAT report,[6] and concluded the applicant has no profile, religious, political or any other form that would attract the adverse attention of the Iranian authorities.
[6] ‘DFAT Country Information Report on Iran’, 20200414083132, 14/04/2020, p 25–26
Azeris are politically and socioeconomically diverse: they work in a variety of professions, have a wide range of income and wealth levels, and have attained a range of education levels. Azeris are, on the whole, better integrated into Iranian society, business, politics and the security forces, and have greater influence, than other ethnic minorities. The Azeri community has substantial economic weight, and several of its members hold important positions in the state apparatus and in the armed forces. Ayatollah Khamenei is half-Azeri, as is former prime minister and leading opposition figure Mir Hossein Moussavi.
While Azeris are well-integrated into Iranian society, DFAT is aware of some reports of official discrimination. This includes claims that authorities have harassed Azeri activists and changed Azeri geographic names. According to Amnesty International, hundreds of Azeris, including minority rights activists, were arrested for participating in peaceful cultural gatherings in 2018, some of whom were reportedly sentenced to prison terms and flogging. The Special Rapporteur on the situation of human rights in Iran claims that, as at July 2019, at least 82 Azeris were in detention on national security-related charges. Some of those detained have advocated for state recognition of the Azeri language.
124. During the Tribunal’s hearings, the applicant mentioned that he could speak some Azeri and that both his parents were Azeris by ethnicity. At no stage did the applicant advance any reasons, including as a contributing factor, that his ethnicity would be a source of adverse interest to the authorities. The Tribunal reiterates that the applicant’s home area is metropolitan Tehran.
125. The more recent DFAT report does not have any substantial details about Azeris or Azeri Iranians other than to mention Azeris make up about 16 per cent of the population. Consequently, the Tribunal has relied on an earlier DFAT report to consider whether there are any objective reasons the applicant faces a real chance of serious harm or a real risk of significant harm based on his ethnicity. However, it notes that the more recent DFAT report “assesses that members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. Discrimination may take the form of denial of access to employment and housing, however, is unlikely to include violence on the grounds of ethnicity alone.”
126. Given the Tribunal does not accept the applicant has any credible basis that he has breached any moral code and no adverse political, national security, cultural, religious or any other profile as a voluntary returnee, it finds the applicant faces only a remote or insubstantial chance, and not a real chance of official or societal discrimination in the form of denial of access to employment, health services, housing or any other basic service or whereby the applicant will be denied the capacity to subsist or any other serious harm as non-exhaustively listed under s 5J(5) or as mentioned s 5J(4)(b), based on his ethnicity, should he voluntarily return.
127. It follows from this ‘real chance’ finding that there are no substantial grounds for the Tribunal to believe that the applicant, as a foreseeable and necessary consequence of his voluntary return to his home area in Tehran – which is demographically 25 per cent Azeri – will suffer a real risk of significant harm based on his Azeri ethnicity.[7]
[7] Iranian Azerbaijanis, Wikipedia Iranian Azerbaijanis (also known as Iranian Azeris, Iranian Turks, Persian Turks or Persian Azerbaijanis are Iranians of Azerbaijani ethnicity who may speak the Azerbaijani language as their first language. Iranian Azerbaijanis are mainly of Iranian descent, Iranian Azerbaijanis are primarily found in and are native to the Iranian Azerbaijan region including provinces of (East Azerbaijan, Ardabil, Zanjan, West Azerbaijan) and in smaller numbers, in other provinces such as Kurdistan, Qazvin, Hamadan, Gilan, Markazi and Kermanshah. Iranian Azerbaijanis also constitute a significant minority in Tehran, Karaj and other regions.
128. Should the applicant voluntarily relocate outside of Tehran to East Azerbaijan or any other predominantly Azeri area or where there is a significant minority of Azeris throughout Iran, the Tribunal further finds that the applicant faces a real chance of harm through ethnic discrimination, but that harm does not amount to significant physical maltreatment or serious harm, as non-exhaustively listed under s 5J(5) or as mentioned in s 5J(4)(b), based on his ethnicity, should he voluntarily return.
129. Noting that serious harm is similar but not the same as significant harm, the Tribunal does not accept there are substantial grounds for it to believe that the applicant will suffer an appreciable or real risk of significant harm based on his Azeri ethnicity in relocating to other parts of Iran. Furthermore, the Tribunal does not accept there is taken to be a real risk that the applicant will suffer significant harm as it is satisfied that it would be reasonable for the applicant to relocate to any area of the country as required under s 36(2B)(a).
130. In this regard, the applicant does not meet either s 36(2)(a) or s 36(2)(aa).
Double jeopardy
131. In the applicant’s statutory declaration dated 2 August 2016, he disclosed the following in relation to breaching laws about theft and public drunkenness while in the State of Queensland in 2013:
About two years ago in Australia, I was with a few friends in the city after we had been drinking during the night. We went into a restaurant and I found a purse on the ground. I had just arrived in Australia and did not know the language. I took the purse and wanted to give it to the police. My friend told me that I could take the purse and return it at the police station the next day. I was on the bus heading home when the police came up to me. I understood they were looking for the purse that I found but I could not explain how I found it because I did not speak English. I found out later the purse had a mobile phone in it, which was how the police knew where it was. I gave them the purse and they took me to the police station. I was with them for a few hours until morning.
About a month later, I received a letter from the Court saying I had a hearing. When I went to Court, they said that I was charged with public drunkenness and theft of the purse. I did not have a lawyer. I spoke to the police officer and as far as I understand he told me if I did not plead guilty it would go on for a while and that even finding an item on the ground was stealing. I did not have an interpreter during this conversation. I agreed to plead guilty. The
Court gave me a one year good behavior bond. I was never trying to steal the purse, I simply wanted to return it to the police. I have not committed any offences since and I no longer drink much alcohol.

132. The Tribunal notes that the Departmental officer during the July 2017 interview sighted the court date indicating the applicant was to comply with a good behaviour bond between November 2013 and November 2014.
133. The delegate considered whether double jeopardy laws in Iran were applicable to the applicant given this information and assessed that the applicant did not have a real chance of serious harm or a real risk of significant harm due to these aspects of his activities in Australia.
134. During the hearings, the applicant did not raise these claims as relevant to his other claims or advance them in their own right as reasons for not being able to return to Iran, either as a failed asylum seeker or voluntarily.
135. Nonetheless the Tribunal has considered the country information about double jeopardy in Iran is relevant to the applicant’s fears of having a real chance of serious harm or a real risk of significant harm if he voluntarily returns to Iran.
136. In the 2020 DFAT report it states that the Penal Code in Iran allows for the re-prosecution of an Iranian national for an offence committed and punished in another country (‘double jeopardy’) in limited circumstances. Article 7 of the Penal Code states that an Iranian national who commits a crime abroad and is found in, or extradited to, Iran shall be prosecuted and punished in accordance with Iranian law. However, crimes committed abroad that are punishable by taz’ir (including drug trafficking) are excluded from re-prosecution in Iran if the accused is not tried and acquitted in the place of the commission of the crime or, in the case of conviction, the punishment is not – wholly or partly – carried out against them. Crimes committed abroad that are punishable by hudud (including illicit sex and sodomy) and qisas (including murder) may be re-prosecuted in Iran if a private party impacted adversely by the crime registers a complaint with the Public Prosecutor’s Office and the Penal Court. The more recent 2023 DFAT report provides a similar background and assesses that it is not aware of any recent examples of double jeopardy of failed asylum seekers but understands it is possible.
137. The Tribunal notes that drinking alcohol and public drunkenness can be subject to criminal charges in Iran and can involve imprisonment and other punishments as alcoholic consumption without an exemption is illegal in Iran. Alcohol use can be punished by 80 lashes and, upon multiple convictions, death. Amnesty International reported that a man from Mashhad was executed for repeated alcohol convictions in July 2020. DFAT understands that prosecutions for alcohol consumption are not common and are often resolved with the payment of a fine (or a bribe).[8]
[8] DFAT country information report on Iran, 24 July 2023 pp.11–12.
138. This information indicates the applicant’s convictions in Australia do not relate to offending subject to re-prosecution in Iran. Given double jeopardy appears to be not frequently applied in Iran, neither does country information support the applicant facing a real chance of being re-charged and re-prosecuted, including based on a private party registering a complaint against the applicant’s past offending. For these reasons the applicant does not face a real chance of questioning as a voluntary returnee on arrival, the Tribunal does not accept the applicant faces only a remote or insubstantial chance, and not a real chance of serious harm through the re-prosecution of offences involving theft and alcoholic consumption, should the applicant return to Iran in the reasonably foreseeable future.
139. It follows from this ‘real chance’ finding that there are no substantial grounds for the Tribunal to believe that the applicant, as a necessary and foreseeable consequence of his voluntary return to Iran, will suffer a real risk of significant harm based on his past offending in Australia, either on arrival or in the community more generally.
Past punishment during compulsory national service
140. The applicant disclosed that he undertook compulsory military service between 1994 and 1996 during which he absconded for longer than was permitted, remanded by military authorities and then later punished by the military tribunal. The punishment included imprisonment for one month in a military facility and a fine. The applicant did not have his military service extended and was provided a completion certificate of his services. The applicant did not claim to have been subjected to any adverse treatment or further punishment while detained.
141. The Tribunal notes that the applicant had undertaken travel internationally and voluntarily returned to Iran on a number of occasions after completing military service without being apprehended or harassed as a former conscript with a record of non-compliance. There has been no suggestion by the applicant or in any of the country information that he would be a person of interest to the authorities because of this breach of military protocol for which he had been punished.
142. For these reasons, the Tribunal does not accept the applicant faces a real chance of serious harm for any reasons mentioned under s 5J(1)(a) arising from his accepted military or national service record of non-compliance, should the applicant voluntarily return to Iran in the reasonably foreseeable future. There are no substantial grounds for the Tribunal to believe that the applicant, as a necessary and foreseeable consequence of his voluntary return to Iran, will suffer a real risk of significant harm based on his history during compulsory national service.
143. In this regard, the applicant does not meet either s 36(2)(a) or s 36(2)(aa).
Physical and mental health symptoms
144. Throughout the application, the applicant has claimed to have suffered mental health symptoms both in Iran and Australia. The applicant has claimed that after his relationship with a married woman broke down and he feared having a complaint of criminal adultery against him that he saw a psychologist on a monthly basis and was taking anti-depressants. During the second departmental interview, the applicant could not recall the name of the medication. The applicant said that his mental health was so bad he could not concentrate, and he stopped working. However, he did not tell his parents about his mental health symptoms. The applicant fears his mental symptoms will deteriorate on returning to Iran.
145. In Australia, the applicant has provided written and oral evidence to the Department he had accessed counselling while in detention and undertaken some ongoing treatment in Australia.
146. The Tribunal in the second hearing raised with the applicant whether he had any medical issues relevant to these claims. The applicant responded he had some mild but treatable digestive problems with an ulcer and acid reflux. The Tribunal then prompted the applicant about mental health conditions. The applicant said that he has depression, and it was treated though consultations with a counsellor and that while he was on medication in the past, currently he is not.
147. In the context of the Tribunal’s adverse credibility findings, it does not accept the applicant’s mental health symptoms in Iran were triggered by the adulterous relationship that has been central to his dispositive claims for protection. However, the Tribunal accepts the applicant did suffer depressive symptoms in Iran, and that he was treated while in Iran, as claimed.
148. The Tribunal furthermore accepts that the applicant has mild digestive symptoms and some chronic mental health symptoms, including depressive symptoms, for which he has been treated on an ongoing basis. However, the Tribunal does not accept the applicant’s symptoms can be reasonably characterised as significant, severe or debilitating. The Tribunal accepts the applicant suffers some stigma about depression given his non-disclosure of the problem to his family members, but the stigma is not so severe or significant he was not able to access treatment while in Iran.
149. The most recent DFAT report states 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.
150.
In this matter, the applicant has not disclosed to his family his mental health symptoms. However, the applicant will not be encountering a real chance or a real risk from any significant stigma preventing him from him accessing further psychological evaluations or treatments in Iran, as the applicant has already been evaluated and treated in Iran in the past and subsequently since his arrival in Australia. Should the applicant encounter a real chance of any harmful stigma as a voluntary returnee, the Tribunal does not accept that harm amounts to serious harm as non-exhaustively listed under s 5J(5) or as required by

s 5J(4)(a). Similarly, the Tribunal does not have any substantial reasons to believe the applicant will suffer a real risk of any harm amounting to significant harm as listed under

s 36(2A). This significant harm includes being subjected to degrading treatment or punishment which is defined as ‘extreme humiliation’ in the Act.
151. With this in mind, the Tribunal notes that country information supports the applicant being able to access Iran’s mental health services, either publicly or privately, and that he will not face a real chance or real risk of being denied these services. Based on the available evidence about his mental health, the Tribunal finds that the applicant’s mental health symptoms cannot be reasonably characterised as considerable, significant or severe. Neither does the applicant’s mental condition deteriorate without treatment that it will amount to serious harm through severe mental torment. In accessing Iran’s mental health system the Tribunal is satisfied that his accepted mental and physical health symptoms have a real chance of being treated and that the applicant does not face a real chance of serious mental torment or a denial of access to basic services, where the denial threatens the applicant’s capacity to subsist or his treated symptoms amount to significant hardship or a denial of capacity to earn a livelihood of any kind, where the denial threatens the applicant’s capacity to subsist, or any other serious harm non-exhaustively listed under s 5J(5) or as required by s 5J(4)(a), as a voluntary returnee to Iran.
152. Furthermore, the Tribunal does not have any substantial reasons to believe the applicant will suffer a real risk of any harm amounting to significant harm as listed under s 36(2A) arising from any of the challenges the applicant has in accessing and being treated for mental health symptoms.
153. Based on his accepted overall health symptoms and history of treatment as well as the available country information, the applicant does not meet either s 36(2)(a) or s 36(2)(aa).
Cumulative findings
154. The Tribunal is satisfied that the applicant was given a real and meaningful opportunity to give evidence and present arguments in relation to the issues arising from the decision under review in a manner that was consistent with s 425 of the Act.
155. There are no more residual claims to consider in this first application for a protection visa.
156. As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v LayLat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

157. Based on the applicant’s accepted circumstances and having assessed all of the applicant’s written and oral claims, both individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s 5J(1)(a),(b) or (c) or s 5H if he is returned to the Islamic Republic of Iran, and does not satisfy the criterion in s 36(2)(a).
158.
Having assessed all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Islamic Republic of Iran there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, pursuant to

s 36(2)(aa) of the Act.
159. With regard to the first visa application numbered 1903163, the applicant is not a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa).
Second visa application: 2104733
160. As discussed in a letter to the applicant dated 27 June 2023 and in the second hearing, the applicant arrived in Australia by sea in the vicinity of the Territory of Ashmore and Cartier Islands [in] September 2012.
161. 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 applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Temporary Protection visa or a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
162. In this matter, the applicant was granted a Temporary Safe Haven (Subclass 449 -Humanitarian Stay (Temporary)) visa on 6 June 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time.
163. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
164. The applicant applied for a temporary protection visa on 10 August 2016 (the first visa application or 1903163). A delegate of the Minister decided to refuse to grant this visa on 7 February 2018. An application for review of the first application’s refusal decision was made on 12 February 2018.
165. Following this, the applicant purported to make a second application for a temporary protection visa on 6 October 2020 (the second visa application or 2104733). The second visa application was refused by a delegate on 8 April 2021. An application for review of that decision was made on 14 April 2021.
166. However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because he was not within the class of persons specified in the then Minister’s s 48B determination.
167. It is the Tribunal’s advice that the second visa application pertaining to the applicant is, and always was, barred under s 48A. The Tribunal accepts that advice and accordingly, the second visa application is found to be invalid.
168. If follows from this that the Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application made on 6 October 2020 is not valid.
Conclusion
169. With regard to the first visa application numbered 1903163, the Tribunal is 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 any of the criteria in s 36(2).

172. With regard to the second visa application and for the reasons outlined above, the Tribunal sets aside the delegate’s refusal of the second visa application and substitutes it with a decision that the second visa applicant was not valid.
DECISION
173. For case number 1903163: The Tribunal affirms the decision made by the delegate of the Minister on 7 February 2018 not to grant the applicant a protection visa.
174. For case number 2104733: The Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 6 October 2020 was not valid.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

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

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

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

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

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

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

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

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

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…