1903419 (Refugee)
[2023] AATA 3568
•09 October 2023
1903419 (Refugee) [2023] AATA 3568 (9 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1903419
COUNTRY OF REFERENCE: Iran
MEMBER:Senior Member G.A.F. Connolly
DATE:09 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 09 October 2023 at 4:17pm
CATCHWORDS
REFUGEE – Protection Visa –Iran –religion – converted to the Bahai faith in Iran – the active Bahai faith and practice of the applicant – applicant was formally recognised as a member of the Australian Bahai Community – applicant is a person in respect of whom Australia has protection obligations– under review remitted
LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 423A,499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (Minister’s Delegate) on 24 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
At the conclusion of the third hearing of this case by me on 19 September 2023, I adjourned the hearing, briefly, and then delivered my decision in this case, informing the applicant that she had made an overwhelming case, that she had been successful, and that I would set aside the decision of the Minister’s Delegate with the direction that she was a person to whom Australia owed protection obligations under s 36(2)(a) of the Migration Act.
While it is not usually the practice in this Tribunal for an applicant to receive the decision in their case at the conclusion of a hearing, this applicant’s case was an overwhelmingly meritorious application to the Tribunal for review of an adverse decision that should never have been made.
It was and is my view, given all of the facts and circumstances of this case, that this applicant should succeed in her application. This applicant’s case, now entering its sixth year, has seen her suffer unjustly, given her case’s obvious strength – certainly, more than any person should suffer in a constitutional and rule of law jurisdiction of Australia’s age and maturity. If, as the cliched law reform graffito goes, “the process is the punishment”, then that process needed to be brought to an end, as swiftly as legally possible, by any Tribunal member in my position. I make no apologies for doing so. The applicant has been successful in her claim that she is owed protection obligations by Australia – and, frankly, she should have been successful when her case was first lodged in 2018.
What follows here is my statement of reasons for the making of the decision that I made in this case on 19 September 2023 that the applicant is a refugee and that she is owed protection obligations by Australia.
THE FACTS
The applicant is a citizen of Iran and she is [age] years of age. The applicant is from Mashhad in Iran, where her family reside. Her father was and is a businessman in Mashhad[1] and he is a devout Shia Muslim and supporter of the Islamic regime in power in Iran.[2] The applicant’s mother and her family were supporters of the former Shah of Iran[3] and the applicant’s mother gave the applicant something of a ‘home away from home’, away from her father, who, on the evidence before the Tribunal, treated his daughter with a degree of indifference as well as cruelty.[4] The applicant says that she was raised in part by her grandparents to raise her.[5] The applicant’s maternal grandfather encouraged her to learn English from a young age.[6] The applicant often lived with and looked after her grandparents, particularly her grandfather, until he passed away in 2017. [7]
[1] Applicant’s Statutory Declaration of 15 August 2023 at paragraphs 7 and 13.
[2] Applicant’s Statement of 05 July 2023 at 2-3
[3] Applicant’s Statutory Declaration of 15 August 2023 at paragraph 5.
[4] Applicant’s Statement of 05 July 2023 at 1-2, 3.
[5] Evidence given by applicant at hearing on 30 May 2023.
[6] Applicant’s Statutory Declaration of 15 August 2023 at paragraph 6.
[7] Applicant’s Statutory Declaration of 15 August 2023 at paragraph 29.
In the years 2010-2013, the applicant’s father attempted to arrange marriages for the applicant in Mashhad.[8] The applicant’s family and the families of potential husbands would meet. The applicant’s evidence was that she resisted all these attempts, usually by informing her potential arranged husband that she did not want to get married, some of whom were understanding of her plight.[9] The applicant’s father was against her going to university. The applicant faced a series of potential suitors, none of which resulted in her marriage.[10]
[8] Applicant’s Statutory Declaration of 15 August 2023 at paragraph 15 to 25.
[9] Applicant’s Statement of 05 July 2023 at 6.
[10] Evidence given by applicant at hearing on 30 May 2023.
In 2013, the applicant finished her university studies and from 2014-2017, the applicant worked in a number of [specified] roles.[11]
[11] Applicant’s Statement of 05 July 2023 at 6-7.
In 2014, the applicant attended further [courses] in Karaj in Iran.[12] While in Karaj, the applicant began her studies in Bahai.[13]
[12] Applicant’s Statement of 05 July 2023 at 6.
[13] Applicant’s Statutory Declaration of 15 August 2023 at paragraph 28.
In 2014, the applicant says she converted to the Bahai faith in Iran (which due to Iranian state persecution of the Bahai had to be done in ‘underground’ circumstances but which was recognised in Australia on 25 February 2019).[14]
[14] Applicant’s Statutory Declaration of 15 August 2023 at [5].
In February 2017, the applicant’s maternal grandfather passed away, causing her trauma and depression.[15]
[15] Applicant’s Statutory Declaration of 15 August 2023 at paragraph 29.
On [date] November 2017, the applicant arrived in Australia with her maternal grandmother and aunt on a tourist visa[16], in order to attending a wedding.[17] The applicant arrived in Perth and stayed with her maternal uncle and his wife, the applicant’s Australian-born aunt, and family in Perth. The applicant resumed attending Bahai services and informed her maternal uncle and his family that she had converted to the Bahai faith in Iran. While the uncle’s Bahai friends were welcoming of the applicant, the uncle, himself, was not supportive of the applicant and behaved in the applicant’s view as an ‘…extension of my father’.[18]
[16] Protection Visa Decision [Record] of 24 January 2019 at p1.
[17] Applicant’s Statutory Declaration of 15 August 2023 at paragraphs 30 to 31.
[18] Applicant’s Statement of 05 July 2023 at 8.
On Christmas Eve 2017, the applicant says that she was told by her maternal uncle that the Iranian regime’s Sepah, the Islamic Revolutionary Guard Corps.[19] Shortly after this, the applicant’s uncle criticised the applicant, who said that he did not want the applicant to stay with him and stopped taking to her.[20] The uncle would denounce the applicant for her Bahai beliefs.[21]
[19] Evidence given by applicant at hearing on 19 September 2023.
[20] Evidence given by applicant at hearing on 19 September 2023.
[21] Applicant’s Statutory Declaration of 15 August 2023 at paragraphs 34 to 36.
In the period 2017-2020, while living in Perth, the applicant joined the Bahai community and attended Bahai study circles. The applicant attended the holy days and special services of the Bahai community.[22] The applicant also attended [specified] events and was a volunteer for [a program].[23]
[22] Applicant’s second Statutory Declaration of 15 August 2023 at paragraphs 15 to 21.
[23] Applicant’s second Statutory Declaration of 15 August 2023 at paragraphs 23 to 25.
From 2017 to 2020, the applicant was a volunteer [occupation], including [details of the work deleted].[24]
[24] See the letter [of] 29 September 2021.
On 20 February 2018, the applicant applied for a protection visa.
On 24 Jan 2019, the Minister’s Delegate refused to grant the applicant a protection visa.[25]
[25] Protection Visa Decision Record: [deleted] of 24 January 2019 at p11.
On 25 February 2019, [an organisation] confirmed the membership and good standing of the applicant.[26]
[26] See appendix C to the Applicant’s second Statutory Declaration of 15 August 2023 at paragraphs 15 to 21.
From July to December 2019, the applicant studied and completed [a] course at [a university].[27]
[27] Applicant’s Supportive Statement of 27 April 2023 at 6.
In March 2020, the applicant commenced working [to] earn money to pay rent to her aunt and uncle. However, the applicant had another argument with the uncle, who threatened her with violence, saying he would make the applicant’s “bones crack”.[28] The applicant made plans to leave Perth and go to Sydney with her [boyfriend].
[28] Evidence given by applicant at hearing on 19 September 2023.
In middle 2020, the applicant relocated to Sydney, where she participated in Bahai events and services online, and joined the Sydney Bahai community.[29]
[29] Applicant’s Supportive Statement of 27 April 2023 at 7 See also letter of [name] dated 22 April 2023 and letter of [name] of 20 April 2023.
From July to December 2020, the applicant attended and completed a [qualification] .[30]
[30] Applicant’s Supportive Statement of 27 April 2023 at 6.
On 01 August 2021, the applicant’s degree [was] conferred by [a named university].[31]
[31] [university] Academic Record dated 02 August 2023.
In November 2021, the applicant was formally recognised as a member of the Australian Bahai Community.[32]
[32] Applicant’s Supportive Statement of 27 April 2023 at 6.
The applicant appeared before the Tribunal to give evidence and present arguments on these dates:
¾30 May 2023;
¾08 August 2023; and
¾19 September 2023.
In support of each of these hearings, the applicant also provided an enormous amount of documentation in support of her claim. The Tribunal hearing was conducted with the assistance of a very experienced interpreter in the Persian and English languages albeit the applicant felt comfortable making her case in the English language, with only limited resort to the interpreter, skilled as he was.
It must be noted that the applicant was represented in relation to the review at several points. The representation of the applicant was of a generally poor standard and ill-served her interests. The applicant always seemed to have a strong case.[33] For reasons that I will explain, it is my view that the applicant was her own best advocate and that, sadly, her successive representatives only served to get in the way of the applicant’s making of her case before the Department and now this Tribunal. Nonetheless, for reasons that I make clear here, the applicant has been successful and the Department’s decision set aside.
[33] See the voluminous annexures to the two Statutory Declarations made by the applicant on 15 August 2023.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of Migration 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.
Any application to this Tribunal, even where an applicant has not appeared for its hearing, is a proceeding de novo and not an appeal, strictly speaking, at least not an appeal to any court. The case before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.
In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task[34]:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.
It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits. In view of what was said in Drake, set out above, it is important to repeat that the Tribunal here takes on the role of determining what was the correct or preferable decision on the whole of the material that has been filed with or presented to this Tribunal in this case.
[34] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of Migration Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
PROCEEDINGS BEFORE THIS TRIBUNAL
It is important at the outset of these reasons to explain the nature of this Tribunal and its task in cases such as this one.
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for an applicant to advance whatever evidence or argument they wish to advance in support of their contention that Australia owes them protection obligations. This Tribunal must then decide whether that claim has been made out.[35]
[35] See Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ
Pursuant to ss. 5AAA and 423A of the Migration Act, it is an applicant’s responsibility to make their own case in as much detail as possible at the first reasonable opportunity otherwise adverse inferences may be drawn. I will discuss these two sections in more detail.
Firstly, s 5AAA of the Migration Act makes clear that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, and critically, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. In this respect, two obligations are particularly relevant: the ongoing requirement under s.104 of the Migration Act for an applicant to ensure their relevant details are correct and up to date, and, also, for them to amend any incorrect information at the first reasonable opportunity.
Secondly, in respect of protection applications, such as this case, s 423A of the Migration Act requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such a case, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not first raised or the evidence was not first presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence. Applicants, therefore, who do not present all of their claims and evidence to the primary decision-maker must have a reasonable explanation for their not doing so.
Again, the Tribunal is conducting a ‘de novo’ review and, in this regard, I have considered all of the material afresh and made my own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. While as noted above, the Tribunal is inquisitorial and can seek out the evidence it requires in order to reach a determination, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[36] It is, rather, the responsibility of each applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim: s 5AAA of the Migration Act.
[36] see ABT16 v Minister for Home Affairs [2019] FCA 836 (05 June 2019) at [28] per Perram J.
CONSIDERATION OF CLAIMS AND EVIDENCE
Noting the above, then, the issue in this case is whether the applicant has made out her claim that Australia owes her protection obligations.
The Threat of Harm to members of the Bahai faith in Iran
Given the facts and the circumstances of the applicant’s Bahai faith, it is worth noting in full, what the latest Department of Foreign Affairs and Trade report[37] says about the position of members of the Bahai faith in Iran:
2.91 There are approximately 300,000 Baha’is in Iran. The Baha’i faith grew out of the Babi faith founded in 1844 in Shiraz, one of Iran’s largest cities. Baha’i beliefs originated in the Twelver Shi’a Islamic faith (the majority faith in Iran) who believe in the forthcoming return of the 12th imam (the 12th successor to the Prophet Mohammad). The new religion spread rapidly and was immediately controversial with its founder, sometimes known as the ‘Bab’, executed in 1850.
2.92 The Baha’i faith is illegal in Iran and its adherents are considered infidels. The government actively seeks out Baha’is including through activities such as coordinated raids. There are hundreds of Baha’is imprisoned for practising their faith. Baha’i schools are illegal. Charges laid against them are vague, however might include ‘gathering and colluding in order to disrupt the security of the country’ or ‘propaganda against the state’. Three Baha'i community leaders were arrested and charged with national security offences in the first half of 2023. Baha’i land may be seized based on being ‘illegitimate’. Baha’is are not entitled to government employment (the government is the largest employer by far in Iran) or social security. Employers may refuse to hire Baha’is and universities refuse to admit them for study (which may be as a result of either government pressure or societal discrimination, or both).
2.93 DFAT assesses that Baha’is face a high risk of official and societal discrimination based on their non‑recognised status, the hostile rhetoric used against them in official statements and the limits imposed on their employment, education and family law status. Baha’is who are open about their faith and who advocate for the community’s rights face a particularly high risk of arrest and imprisonment.
[37] Department of Foreign Affairs and Trade, Iran Country Information Report, 24 July 2023, at paragraphs 2.91 to 2.93.
The persecution of the Bahai in Iran since their advent in the 19th century has been a constant of any reasonably scholarly history of Iran. It is notable that the state-effected (not merely sponsored) persecution of the Bahai occurred under the Shahs of Iran, as well as the Islamic republic’s regime. This said, the later period of the Shah’s regime in the 20th century saw some measure of tolerance and respite for the Bahai, whereas the advent of the Islamic republic in 1979 meant a renewed and increasingly brutal persecution of the Bahai, which has gone on since to this day.[38] It is difficult in 2023 to foresee how and when the persecution of the Bahai may or will end, let alone the ordinary Bahai worshipper be free to follow his or her religion without fear of harm. It is relevant for this case, though, to note how exhaustive and unrelenting the persecution of the Bahai is in contemporary Iran.
[38] See Mina Yazdani. "Towards a History of Iran’s Baha’i Community During the Reign of Mohammad Reza Shah, 1941-1979", Iran Namag, Vol 2 No 1 (Spring 2017): 66-93.
The Bahai’s persecution in Iran is a constant in NGO reporting.[39] The arrest, detention, and interrogation, of Bahai members, and the confiscation of their property and businesses, and the impoverishment of the Bahai families, is a recurring reality of the Iranian regime. As the British Foreign, Commonwealth and Development Office noted recently, the Bahai are not merely persecuted, but, also, when arrested, they are subject to the imposition of excessive sums for bail, designed to effect the financial ruin of Bahai families who have no realistic means of meeting bail costs.[40] From the ongoing arrest and detention of Bahai to the state’s confiscation of Bahai’s financial resources, the Iranian state inflicts a comprehensive and cruel plan to reduce the Bahai faithful to a state that is either one of penury and/or prison.
[39] Amnesty International, “Iran: Stop ruthless attacks on persecuted Baha’i religious minority”, 24 August 2022.[40] Persecution of the Baha'i faith in Iran: FCDO statement, 05 October 2023.Very recently, the United States Commission on International Religious Freedom noted this seemingly ever present persecution of the Bahai in Iran[41] would soon be increased even further, which details here have a particular resonance given this applicant is a female from Mashhad:
While Iran has systematically persecuted Baha’is for decades, this persecution has increased amid nation-wide protests over mandatory hijab laws and other restrictions on freedom of religion or belief. In July, Iranian authorities arrested a group of Baha’is in Gilan province on accusations of “promoting Baha’i teachings.” Earlier this month, nine Baha’i women in Mashhad were summoned to appear in court and began serving sentences at Kachoui Prison and Karaj Central Prison on charges including educational and promotional activities against Sharia. In addition, the Mashhad Revolutionary Court sentenced a Bahai woman to ten years and three months in prison on the same charge, as well as a spate of additional spurious national security charges.
[41] United States Commission on International Religious Freedom, “USCIRF Condemns Recent Arrests and Jailing of Baha’is in Iran”, 09 August 2023.Overall, it is impossible, after what has been an exhausting search, to find any relevant reporting on the current status of the Bahai in Iran that does not make an often graphic reference to the remorseless persecution of the Bahai faithful. Moreover, this persecution of the Bahai occurs throughout Iran. There is no Bahai safe areas or places of relative toleration to which a Bahai could move and have some respite from Iranian state persecution. If there is one persecution that will unite the apparatus of the Iranian state, it is the inflicting of harms on the Bahai.
Assessing the Applicant’s case
To reiterate what I have said in other cases: where an applicant makes a claim of a fear of persecution, the mere fact that a person claims this fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that the fear is well-founded, or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth.
Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.[42]
[42] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.
Here, however, the applicant’s case was always strong. The ever-present reality of Bahai persecution in Iran – in all parts of Iran – and the active Bahai faith and practice of the applicant, always made for the case of any person in the applicant’s position to be considered a compelling one. Reviewing this matter and its deluge of material going to the applicant’s faith and circumstances, I am unsure of quite how the applicant’s application for protection was originally refused by the Minister’s Delegate. While reasonable minds can disagree on a particular case, the treatment of this applicant was, at best, unreasonable, if not verging on the cruel. It was ridiculous for the Minister’s Delegate to posit doubt of the Sepah’s interest in the applicant as a Bahai, when all of the evidence in relation to the Bahai in Iran is to the effect that no Bahai is too insignificant to warrant the Sepah’s attention and the persecutions imposed on the Bahai by the Iranian state.[43]
[43] Protection Visa Decision Record: [deleted] of 24 January 2019 at page 5.
Were this not the case, in any evident, the applicant’s situation as a single and never married woman, even at her adult age, subject in Iran to her father’s authority, and the subject of violent threats, including from within her family, would make for a compelling case in terms of s 36(2)(aa), too, given the repeated attempts by the applicant’s father to marry her, against her will.
I have no doubt in the genuineness of the applicant’s conversion to Bahai and there is no evidence before me that would cause a decision maker in my position to disbelieve her. The documentary evidence in support of the applicant’s claims is significant.
Overall, the applicant’s case that she was owed protection obligations by Australia on account of her Bahai faith, was always a very strong one. The applicant has made very much the same case since she first commenced her case in early 2018 and, impressively, did not attempt to improve, alter, or vary her case, in successive hearings before me. Admittedly the evidence to support the applicant’s case comes partly from her, but there was and is, also, this weight of evidence that is external to her, and which she provided to this Tribunal in exhaustive detail. One shudders at the amount of time that this genuinely meritorious applicant spent in preparing this material, with the ever present worry that she would have to return to Iran, facing a future of religious persecution and crushing societal pressures, and potentially family and political violence.
FINDINGS
At risk of repeating myself, but I here do so to reinforce points already made, this was a case in which the applicant was always, commendably, honest and straightforward with the Tribunal. The applicant did not overstate her case.
What problems there were with this case were not of the applicant’s making but rather the representatives she put her trust in. Unfortunately, this was a case in which the applicant, after three separate hearings, was poorly served by her representatives, who hindered rather than helped her in making her strong case.
In this respect, this Tribunal must always be careful to look, clearly, at the case that is before it, per the Drake principles, and ensure that the Tribunal sees the case and the evidence of the applicant for what they both truly are. The Tribunal must do this, especially, where the applicant’s representatives are either incompetent or simply get in the way of the applicant’s strongest arguments. This Tribunal must be on guard, and must never allow, a representative’s indolence, inadequacies, and/or incompetence, to impede a proper merits review, and the doing of justice to an applicant in all of the circumstances of their case.
In this respect, as the member hearing this applicant’s case, and conducting the hearing as an inquisitor, some degree of forthright case management and the giving of clear directions was required to get this case into a proper form, wherein its merit was quickly seen. One need not be a Torquemada (albeit in this case it helped) to have been impatient where a case’s obvious merit was being repeatedly obscured by the representative’s torpor and placing of irrelevant gloss. Indeed, members of this Tribunal should be impatient where a representative’s inadequacies threaten or impede the doing of justice.
In this case, the applicant’s case was only presented in relevant and compelling detail, when the applicant, finally, took over her case from her former representatives. While it is always an applicant’s responsibility to make her or his case, it can be daunting, especially for someone in the applicant’s position, a lone female from Iran, to second-guess what she may presume is the judgment of an experienced representative. It is not easy, indeed it is almost impossible, for applicants from vastly different cultural and legal cultures to Australia’s, to feel confident that they can navigate, solo, the undulating and often rocky trails and pathways to the resolution of their cases. It is for this and related reasons, which go to the rightness and justice of merits review, that this Tribunal must always be alert to the danger posed by representatives who do harm to, and who do not assist, an applicant’s case.
It may well be, as I say above, that a Tribunal member may have to take an authoritatively inquisitorial charge of the case to ensure every relevant aspect of the applicant’s case is being placed before the Tribunal, and so that the Tribunal’s decision making is not inhibited or impaired by decisions made by representatives of varying ability and diligence. This all said, it is my view that this applicant should never have been placed in the position that she was placed in by her prior representatives, who, in my carriage of this case, did little or nothing to properly advance her case for protection, which was always, as I quickly grasped, a very strong one.
It is the duty of an inquisitorial body such as this Tribunal, to, again, see beyond the errors, indolence, and dare I say it, incompetence, of some of the representatives who will appear before it, from time to time. At the same time, no applicant, particularly this applicant, who has already endured so much needless suffering, should ever have had to rely on this Tribunal holding, as I have done repeatedly here, multiple hearings and giving multiple directions for further submissions and evidence, so that right might, finally, be done. This applicant’s convincing case has been on foot for six years – she commenced her case when she was [age] and she is now [age]. The applicant has suffered much in her time in Iran and, sadly, also, suffered in Australia, including what else she might have done in those six years. The applicant can now get on with her new life, in Australia, knowing that she is entitled to Australia’s protection of her from the certain and cruel harms that would await her, should she have been compelled to return to Iran.
It was, I think, Winston Churchill, who noted that the wheels of divine justice may grind slowly but they grind very small, indeed. While justice’s wheels did grind both slowly and very small in this case, one can feel content, Fiat Justitia, that justice has now, finally, been done by this Tribunal to, and for, this applicant.
For the reasons given above, I am well satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
For the avoidance of any doubt, even if the applicant did not meet the refugee criterion in s 36(2)(a), then I would still be well satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 09 October 2023 at 4:17pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Natural Justice
Procedural Fairness
Remedies
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