1907439 (Refugee)

[2023] AATA 985

1907439 (Refugee) [2023] AATA 985 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ahmad Vahedian Ghaffari (MARN: 1462882)

CASE NUMBER:  1907439 and 2205055

COUNTRY OF REFERENCE:                   Iran

MEMBER:Jane Marquard

DATE:6 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the following matters for reconsideration:

a. matter 1907439 (Safe Haven Enterprise Visa application made on 29 December 2016 and refused on 30 April 2018) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

b. matter 2205055 (Safe Haven Enterprise visa application made on 7 October 2020 and refused on 5 April 2022) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 06 February 2023 at 6:07pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion and political opinion – opposition to regime and renunciation of many aspects of Islam – attire, tattoos, public behaviour and discussions with friends – harassed by Basij, friends arrested and arrest warrant issued for applicant – social media activity and church attendance in Australia – returnee after long absence – claim of conversion to Christianity withdrawn – some claims not accepted but other claims and evidence generally consistent – departure on own passport – country information – decisions under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5AAA, 5H, 5J, 36, 48, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v MIEA (unreported, FCA, 7 November 1997)
DBB16 v MIBP (2018) 260 FCR 447
Fox v Percy (2003) 214 CLR 118
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIAC v SZNSP [2010] FCAFC 50
MIAC v MZYHS [2011] FCA 53
MICMSMA v CBW20 [2021] FCAFC 63
Randhawa v MILGEA (1994) 52 FCR 437
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATIONS FOR REVIEW

1. This decision of the Administrative Appeals Tribunal (the Tribunal) relates to two separate applications for review.

2. The first is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 30 April 2018 to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The second is an application for review of a decision made by a delegate of the Minister on 5 April 2022 to refuse to grant the applicant a SHEV under s 65 of the Act.

4. The applications have been considered jointly with the consent of the applicant as the claims and evidence are the same in each. The background to the applications is explained below.

   BACKGROUND TO THE REVIEW AND OVERVIEW OF APPLICANT’S CIRCUMSTANCES

5. The applicant is a [Age]-year-old man from Tehran in Iran. His parents, [brothers] and [sisters] live in Iran. He is the youngest child. He has one [sibling] in Australia. He currently resides in Canberra.

6. The applicant first arrived in Australia by boat [in] May 2013 at [Location], and was classified as an ‘unauthorised maritime arrival’ by the Department of Home Affairs (under a former name) (the Department). Unauthorised maritime arrivals were defined in s 5AA of the Act, based on arrival method, and he was defined in this way as he arrived without a visa. The applicant was taken into [a] Detention Centre where he was interviewed by a Departmental officer.

7. Unauthorised maritime arrivals were barred from applying for visas under s 48 of the Act unless this bar was lifted by the Minister. The applicant applied for lifting of this bar on 1 July 2013, and on 8 July 2013 the bar was lifted by the Minister.

8. The applicant was then granted a Humanitarian Stay (Temporary) (Subclass 449) visa on 11 July 2013.  At the time it was thought that the effect of this type of visa was to bar the making of other types of visa applications under s 91K of the Act (because at that time the applicant was believed to be an unauthorised maritime arrival). The bar on making a visa application under s 91K of the Act was lifted by the Minister on 28 April 2014. On 29 December 2016 the applicant applied for a SHEV. He claimed protection on the basis that he had denounced Islam in Iran, and this would lead to persecution if he returned. On 30 April 2018 the Department refused the application. This is the first application being reviewed by this Tribunal.

9. After the application was refused by the Department, it was referred to the Independent Assessment Authority (IAA) for review under Part 7AAA of the Act because at that time the applicant was considered to be an unauthorised maritime arrival and therefore a ‘fast track’ applicant and such decisions were reviewable by the IAA. The IAA affirmed that decision on 22 August 2018. The applicant commenced judicial review on 20 September 2018 and the Minister withdrew from that action on 11 December 2018. The applicant’s case was impacted by the decision in DBB16 v MIBP (2018) 260 FCR 447 in which the court determined that [Location] is not an excised offshore place and therefore the applicant was not an ‘unauthorised maritime arrival’ through the act of entering Australia by sea at [Location]. This meant that the applicant was not a ‘fast track applicant’, as defined in s 5(1) of the Act and the subsequent decision to refuse to grant the applicant a visa was not a ‘fast track decision'. As a result, he was able to apply to this Tribunal for review of the decision by the Department dated 30 April 2018 to refuse his application for a SHEV. That decision was referred to this Tribunal on 28 March 2019.

10. The background of the second application for review is as follows. Section 91K of the Act provides that a visa application, other than a Temporary Safe Haven visa application, is not valid if, at the time of application, the applicant held a Temporary Safe Haven visa. Prior to 2015, the s 91K bar applied to unauthorised maritime arrivals (as the Department granted them Temporary Safe Haven visas to enliven s 91K). The applicant was granted such a visa on 11 July 2013 and was therefore banned from applying for a permanent protection visa. The Minister lifted the s 91K bar on 18 September 2020. Additionally, pursuant to the decision in MICMSMA v CBW20 [2021] FCAFC 63, the s 91K bar does not apply. Following these events, the applicant applied for a SHEV on 7 October 2020 (matter number 2205055). The delegate of the Department refused that visa application on 5 April 2022. This is the decision the subject of the second application for review.

11. These matters, being the application dated 29 December 2016 (refused 30 April 2018) and the application dated 7 October 2020 (refused 5 April 2022), are considered here concurrently, with the consent of the applicant, as the claims and evidence relate to both matters.

    SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

12. The applicant has applied for a SHEV.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his or her delegates, by the operation of s 65 of the Act. If granted, it gives the visa-holder the right to stay in Australia temporarily for five years.

    [1] See Migration Regulations 1994 (Cth), Sch 1

13. Australia acceded to the 1951 Convention relating to Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]

    [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

    [3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

    [4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

    [5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’

14. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

15. An applicant must establish that he or she:

    a.is a ‘refugee’ (the refugee criterion);[6] or

    b.qualifies for complementary protection (the complementary protection criterion);[7] or

    c.is a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (the family member criterion).[8]

    [6] Migration Act 1958 (Cth) (the Act), s 36(2)(a)

    [7] Section 36(2)(aa) of the Act

    [8] Section 36(2)(b), (c) of the Act

    Refugee criterion

16. Section 36(2)(a) of the Act 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.

17. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

18. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

19. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

20. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).

21. 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 of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

22. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

23. 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) of the Act, which are extracted in Attachment A to this decision.

    Satisfying the statutory elements

24. Notwithstanding the inquisitorial nature of the Tribunal’s role, it is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, to seek evidence (ABT16 v Minister for Home Affairs [2019] FCA 836) or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

    REASONS GIVEN BY THE DEPARTMENT FOR REFUSING TO GRANT THE VISA

25. In the first application, the applicant claimed that he requires protection in Australia because of an incident in which he and friends had discussed how Islam was imposed not chosen. He said this discussion led to his friends being arrested and an arrest warrant being issued.  The delegate was not satisfied that an arrest warrant had been issued or that the applicant would face a real chance of serious harm on return.

26. In the second application, the applicant claimed protection based on a fear that he would be persecuted for conversion to Christianity and because he had denounced Islam. The delegate of the Department, in a decision dated 5 April 2022, accepted that he was a non-practising Muslim but also did not accept that he participated in a discussion that led to a summons being issued. The delegate was not satisfied that the applicant had a political profile of interest to authorities or that his non-belief in Islam or western appearance would lead to a real chance of persecution.

    evidence

27. The Tribunal has considered evidence in the Department files and evidence before this Tribunal. The Tribunal has also considered independent country information about Iran.

28. The Tribunal has considered the following documents:

    ·Irregular Maritime Arrival and Induction Interview dated 27 June 2013 (the Entry Interview 2013).

    ·Statement of Claims dated 14 December 2016.

    ·Application for a SHEV dated 22 December 2016 (the 2016 Application).

    ·Decision of the Department dated 18 July 2017.

    ·Copy of a passport photograph.

    ·Submissions dated 16 April 2018.

    ·Media article provided by the applicant from The Guardian titled ‘Iranian rapper faces death threats and fatwa for blasphemous song’, dated 15 May 2012.

    ·Translated copy of National Identity Card for the applicant with an expiry date [of] April 2017.

    ·Translated copy of a Year 12 Certificate.

    ·Copy of a birth certificate.

    ·Copy of an exemption from military service.

    ·Interview with the Department dated 16 April 2018.

    ·Post-interview submissions dated 20 April 2018.

    ·IAA decision record dated 22 August 2018.

    ·Application for a SHEV lodged on 7 October 2020 (the 2020 Application).

    ·Interview with the applicant dated 16 March 2022.

    ·Correspondence with the applicant’s representative on 11 March 2022.

    ·Screenshots of two emails dated 22 March 2011.

    ·Non-certified copy of a summons issued on 18 May 2013, with a date of delivery of 19 May 2013, requiring the applicant to attend a court hearing five days after receiving the summons in relation to ‘insulting sacred values, disturbing public opinion and acting against Islam’.

    ·Decision of the Department dated 5 April 2022.

29. The applicant appeared before the Tribunal on 17 October 2022 by video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review and his representative was present at the hearing by video. The applicant confirmed that he could hear and see well and was able to understand the interpreter.

30. The evidence of the applicant is referred to in the findings below. Not all the evidence is referred to in the findings as they incorporate reference to the key information that the Tribunal has found to be relevant to the determination of the issues in the case.[9]

    [9] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271

    KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL

31. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

    ·Whether the incidents described by the applicant took place in Iran (findings of fact).

    ·Whether the applicant has genuinely denounced the Islamic faith.

    ·Whether there is a real chance of serious harm or a real risk of significant harm for the applicant as an apostate, or on the basis of his appearance, political opinion or as a returnee.

32. These issues and other threshold issues are discussed below.

    FINDINGS

    Summary of findings

33. The Tribunal is satisfied that the applicant is a national of Iran. The Tribunal is satisfied that while living in Iran prior to 2013 he suffered some harassment from the Basij and he denounced aspects of the Islamic religion and spoke about this with students while at university. The Tribunal is not satisfied that friends were arrested following these conversations or that the applicant was issued with a summons by the authorities after he left the country. The Tribunal is satisfied that he is genuinely opposed to the current regime and Islam and has made posts on social media in recent years which articulate these views. The Tribunal is satisfied that as a returnee asylum seeker, there is a real chance of serious harm based on his political opinion. Reasons for the findings are set out below.

    Nationality

34. 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’, or if they do not have a nationality, outside the country of former habitual residence. Section 5J(1) refers to this country as a ‘receiving country’.

35. 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, or a country of former habitual residence.

36. The applicant claims that he is a citizen of Iran. He no longer has an Iranian passport, claiming in the 2020 Application that he threw the passport into the ocean on the trip to Australia. The Tribunal has been provided with a copy of his birth certificate, a translated copy of his National Identity Card with an expiry date [of] April 2017 and his school documents. 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.

    Did the applicant renounce Islam and did this lead to arrest and summons?

37. The applicant has claimed that he renounced his religion while living in Iran and that he promoted non-acceptance of Islam, which led to the arrest of college friends and, later, a summons against him.

    Assessing credibility

38. The Tribunal must assess the credibility of these claims. In doing so, the Tribunal acknowledges that asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

39. These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[10] As discussed with the applicant at the Tribunal hearing, the fact that he has been in Australia since 2013 and had given evidence before numerous decision-makers since he first arrived in Australia would no doubt have impacted on the presentation of his evidence.

    [10] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, type="1">

40. In any event, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[11] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[12] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13]

    [11] Fox v Percy (2003) 214 CLR 118

    [12] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010), International Journal of Refugee Law, Volume 22, Issue 4, 469-511, <  Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

The Tribunal is conscious and mindful that there may be factors that influence how evidence is presented and assumptions which may consciously or otherwise influence decisions.[14] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[15]. In the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

[14] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

[15] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[16] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[17]. A similar approach is taken in the Department’s Refugee Law Guidelines[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook)[19], which provides useful guidance for this Tribunal.

Matters not in dispute

[16] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, < SZLVZ v MIAC [2008] FCA 1816 at [25]

[18] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

[19] UNHCR, re-issued February 2019 at [203-204]

There are a number of factual matters that are not in dispute and the Tribunal has no reason to doubt the applicant’s evidence. It is not in dispute that the applicant was born in Tehran in Iran where he lived from birth with his family until he travelled to Australia in 2013. The Tribunal accepts that most of his family, consisting of his mother, [brothers] and [sisters], live in Iran and that his father passed away in 2020 from cancer. He lived with them prior to travel to Australia. The Tribunal notes that he has a [sibling] in Australia, but the applicant does not live with [his sibling], and he has no other family in Australia. The Tribunal accepts that the applicant has Turkish ethnicity, and his family is originally from [Province]. The Tribunal accepts that he comes from a Shi’a Muslim family and his first language is Farsi. His parents talked in Turkish (Dari) between themselves and he can speak a little. The Tribunal accepts that his father was [an Occupation 1] and had a [shop] and his brothers work, one as [an Occupation 2], one as [an Occupation 3], one as [an Occupation 4], one as [an Occupation 5] and one as [an Occupation 6]. His sisters are married and look after their children.

The Tribunal accepts that the applicant completed [High School] in [year] and that from [year] to [year] he studied at [College 1], although he withdrew from the course. He said at the Tribunal hearing that he studied [Subject]. It is not in dispute that he worked at [Workplace 1] as [Occupation 1] while he was studying. He later worked assembling and packing [products] at [Workplace 2].

The Tribunal accepts that his family were not involved in politics as stated in the SHEV interview dated 16 April 2018 and confirmed at the Tribunal hearing.

All these details have been provided consistently in his evidence.

Was the applicant harassed by the Basij in 2010 and 2011?

In his Statutory Declaration dated 14 December 2016 the applicant claimed that he was arrested by the morality police (Basij) in August 2010 in Tehran for having inappropriate attire (trendy clothes). At police headquarters he made an undertaking not to do this again. He also claimed that he was arrested by the Basij in July 2011 for travelling with his girlfriend, and he and his girlfriend were reported to their families. This was also mentioned in the Entry Interview 2013 where he said that he and his girlfriend were stopped and searched a couple of times.

The Tribunal accepts that these incidents occurred given consistency of the evidence. The Tribunal also accepts that the applicant has tattoos on his body, as shown in photographs from [Social media 1]. Country sources about Iran confirm that there were restrictions on the ability to dress freely and on tattoos from 2010. In 2010 the Iranian authorities imposed a stricter dress code that included a list of acceptable hairstyles for men and a ban on certain types of clothing and tattoos at some universities.[20] As reported by Al Jazeera and Radio Free Europe/Radio Liberty, as referenced by the Immigration and Refugee Board of Canada, ‘the enforcement of the dress code is intended to combat Western cultural influences’.[21] There were reports of 70,000 police officers being deployed in Tehran to enforce the dress code.[22] Those found violating the dress code may be fined, arrested, or even have their car impounded if occupants are dressed improperly.[23] The 2010 United States Department of State (USDS) report citing media sources indicates that “more than two million citizens had been stopped or detained by the morality police for inappropriate dress or hairstyle.”[24]

Did the applicant renounce Islam while living in Iran and has he continued to do so in Australia?

[20] Canada: Immigration and Refugee Board of Canada (IRB), 'The enforcement of dress codes', 20 December 2011

[21] Canada: IRB, 'The enforcement of dress codes', 20 December 2011

[22] Associated Press (AP), ‘Iran's fashion police are back on the summer streets and looking for un-Islamic bling', 23 June 2011

[23] United States, Department of State (USDS), Country Reports on Human Rights Practices for 2010, for Iran, 8th April 2011, as referenced in Canada: IRB, 'The enforcement of dress codes', 20 December 2011

[24] United States, Department of State (USDS), Country Reports on Human Rights Practices for 2010, for Iran, 8 April 2011

The Tribunal accepts the applicant’s claims that he was not a devout practitioner of Islam while in Iran and that he renounced aspects of the religion while living there, and in particular he was averse to the concept that Islam was ‘imposed’ on Iranians. The applicant has been consistent about these views in evidence to the Department and Tribunal and spoke passionately to the Tribunal of the reasons for rejecting his family’s religion.

The applicant claimed consistently in his application and review documents that he came from a Shi’a family, but he had doubts about the religion. He gave evidence[25] that although his family practised Shi’a Islam, they did not force him to practise. Based on his evidence, the Tribunal is not satisfied that his family were particularly religious, although they did follow some traditions and practices and went on religious pilgrimages. At the Tribunal hearing he confirmed that his family were religious but not fanatic. He said that they attended commemorations and events but ‘were not fanatic’. He said that they ‘did not really’ pray five times a day, but they ‘had beliefs’. He said that his mother went to mosque often, but his father and brother were busy and did not go all the time but went to ‘certain things’ and they did observe Ramadan. Asked if there were other religious festivals or traditions that his family attended, he said that at Ramadan they fasted for 30 days, for Ashura in the month of Hussein, they observed for 10 days and they also observed Eid. He referred to travel for religious pilgrimages and for holidays to Karbala, Iraq in 2009 and Mecca, Saudi Arabia in 2020. He said that his mother and siblings continue to practise in this same way when they can afford to. This evidence suggests that while the family followed Islamic traditions generally, they were not devout or fanatical.

[25] See SHEV interview

The Tribunal accepts that the applicant had concerns with the Islamic religion from a young age, as he has been able to enunciate his reasons for this and describe incidents of rebelling from Islamic practices. He told the Tribunal that he first started doubting the Islamic religion when he was around 13 years old. He said that in the name of Islam there is embezzlement, murder and ill-treatment and crime and this made him doubt the religion. He claimed that ‘the world can see it’ in the current demonstrations taking place in Iran. He was asked if he spoke to his parents about the concerns that he had as a young boy. He said that he did not, but that they gathered from his behaviour that he ‘acted differently’ and they would ‘put him down’. Asked how he acted differently, he said that he was ‘not paying much attention to Islamic belief’.  He said sometimes he would not go to commemorations and celebrations. He was asked if his parents tried to make him participate more. He said that they did want to impose their beliefs on him, but they did not succeed. He said that he had friends who felt the same way that he did.

Other evidence, provided in the SHEV interview dated 16 April 2018, was that when he was 13 years of age he would secretly eat during Ramadan. Once when eating in a park he was approached by the Basij who took his food and slapped him and warned him that next time he would be taken to headquarters. He also claimed that at 15 or 16 years old he stopped going to mosque even though his parents told him to attend and stopped practising when he was 17 years old as he did not like the religion. He claimed that his disenchantment progressed as he noticed corruption by the Islamic regime in the name of religion and he also referred to the Green movement as influential in his rejection of Islam. He said that he saw how the government was ‘killing people’, so he stopped believing in Islam. He said that his parents were aware of this when he was aged 18 and they were upset with him. He said that his mother called him an apostate. He said in his Department interview in 2022 that he told about five friends in his neighbourhood and about 10 friends at college that he did not accept the Islamic religion. He said that some people did not like it and were ‘odd to him’. He said that they made comments that he was an apostate and would go to hell.

The Tribunal finds his evidence about his rejection of Islam consistent, coherent and persuasive. His experience accords with independent country information which indicates that among the youth in particular, there are many Iranians who are not devout practitioners. A June 2014 Danish Immigration Service fact-finding mission report referred to information from Elam Ministries, 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.’[26] Information provided by Mansour Borji, advocacy officer of the Article initiative of the United Council of Iranian Churches, in the same report, 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.’[27] A November 2014 article from The Economist referred to Iran as ‘one of the least religious countries in the Middle East’ and stated that, while ‘Iranians remain a spiritual people who see Islam as part of their identity’, many had moved away from ‘institutionalised religion’.[28] A February 2013 Qantara article stated that ‘in Iran, the people are leaving the mosques in droves.’[29] ACCORD’s July 2018 report quotes two different recent sources indicating that ‘it is not uncommon for people to claim that they do not believe’ and that ‘a significant number of young Iranians do not consider themselves muslims’ (sic).[30]

[26] Danish Immigration Service, ‘Update on the Situation for Christian Converts in Iran’, June 2014

[27] Danish Immigration Service, ‘Update on the Situation for Christian Converts in Iran’, June 2014

[28] The Economist, ‘Religion: take it or leave it, 1 November 2014

[29] Qantara, ‘Turning away from Shi’a in Iran, 7 February 2013

[30] Austrian Centre for country of Origin and Asylum Research and Documentation, ‘Iran COI Compilation’, 1 July 2018

The Tribunal also accepts the applicant’s evidence that he has continued to reject his Islamic faith while in Australia and would do so if he returned to Iran. He said that while he has sometimes gone to church with his Christian friends in Australia, he has not gone to mosque. He has also posted anti-Islamic posts on social media, discussed later in these findings. 

Did the applicant have conversations with his friends about religion which led to his friends being arrested and a summons being issued for the applicant?

The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). There are aspects of this applicant’s claims which the Tribunal does not accept, in particular that the applicant’s friends were arrested after a discussion in the college canteen about religion and that a summons was later issued for the applicant and delivered to his family home. While the Tribunal accepts (as discussed earlier in these findings) that the applicant questioned Islamic doctrine and practice while in Iran, and it is feasible therefore that the applicant would have had discussions with friends about his lack of interest in religion, his evidence is unpersuasive about the arrests and about the summons. This is discussed in more detail below.

Firstly, there were a number of contradictory statements provided in various accounts of the evidence. The Tribunal has considered the evidence in its entirety and not in isolated parts, and the significance of the inconsistency in this context, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 as well as the Migration and Refugee Division ‘Guidelines on the assessment of credibility’.[31] The Guidelines state that the Tribunal should assess whether contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility.[32] In this case, the Tribunal has found the inconsistencies to be material, and finds that these aspects of his evidence have been inflated to bolster his refugee claim. The applicant claimed in the Entry Interview 2013 that at university he was ‘promoting non-acceptance of religion’ in discussions. He said that the campus security arrested his friends and he was scared that he would be hurt and decided to leave for Australia. He said that ‘somebody else chose his religion’ and he was trying to let his university colleagues know that they should find their own religion. This evidence was consistent in the 2016 Application in which he stated that while at [college] he ‘promoted non-acceptance of religion’ imposed on them at birth while discussing the issue with friends in a coffee shop. He said that there were people nearby who heard and two of his friends were arrested for ‘doing the same thing’. The applicant claimed that he left Iran because of fear of arrest and torture. He elaborated on this in his Statutory Declaration dated 14 December 2016, stating that he believed in God but not religion. He said that when he promoted this, he was reported to college security, who arrested two of his friends. In submissions regarding the 2016 Application dated 16 April 2018 he said that the blasphemous activity occurred over numerous days in the college cafeteria. He said that he convinced friends to participate. He also suggested that it was possible that the college security reported the matter to police.

[31] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, < Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, <>

At the Tribunal hearing he said that the conversation at the college took place about a month before he came to Australia. He was talking to fellow students in the canteen about religion, and the lack of freedom of choice, as they had done on other occasions. He said that during that month the authorities had ‘warned them not to discuss these issues’ and someone near them may have heard their private conversation, as it led to the arrest of some of the students sometime later. He said that he heard one year later that one of his friends is in prison and he has not heard about the other students. He does not know any of the details. Asked when it was that they were arrested, he said that he heard the news in 2014 after he was in Australia, and one was in prison. He decided to leave Iran as his [sibling] was in Australia and ‘the situation was bad’. He said that nothing had happened to him at the college, but he feared that something may happen. He said that he had received a summons, which was issued when he was in transit from Iran. His evidence was that he himself was not contacted by the authorities while in Iran.[33]

[33] 2022 Department interview

1. Asked what the names were of his friends who were arrested, he said that one was [Mr A], who was a close friend, and he cannot remember the other one’s name. He said that it happened 11 years ago, and he has been through a lot; he has had nightmares. He said that he lost his father, and his memory is not that good, and no-one should ask him to remember the names. In his March 2022 interview with the Department, he said that conversations took place between 2011 and 2013. He stated that two of his friends were arrested two months before the applicant left Iran (approximately March 2013): [Mr B] and [Mr C].

2. At the Tribunal hearing the applicant was asked to comment on the inconsistencies in the evidence provided to the Department and Tribunal. The Tribunal put to him that in his 2022 Department interview he said that he had conversations in the coffee shop from when he started university in 2011 to when he left university in 2013, and he was overheard close to elections. This was inconsistent with information provided during the April 2018 SHEV interview when he said that he had the conversations about a month or two before his departure. It was also put to him that he had told the Department that friends were arrested before he left but he told the Tribunal that they were arrested after he left.

3. In response, the applicant told the Tribunal that he said that he had said ‘approximately or possibly’. He claimed that he left the country when he was young, aged [age] or [age], and since then has been through a lot, including racism, and losing his father, and he cannot provide exact details of events that occurred. He said that he has always used the word ‘possibly’ when giving evidence. He said that he could not sleep before the Tribunal hearing, wondering if he will be able to go and see his mother if he gets the visa. He said that he has been through three interviews and hoped this was not a reason for having his visa refused.

4. The Tribunal is cognisant of the fact that the applicant has been in Australia since 2013 and that it is easy to forget details that took place so long ago. The Tribunal also accepts that the stress of his father’s death, racist incidents in Australia and the lack of certainty regarding his migration status may well impact on his ability to recall incidents. However, the Tribunal does not accept that he would confuse key events such as the general time period when the conversations took place, when the arrests occurred, or the names of friends arrested. This leads the Tribunal to conclude that these aspects of his evidence are not credible.

5. Secondly, the applicant claimed in his SHEV interview in 2018 that that there was a summons for his arrest issued two weeks after he departed Iran. A non-certified translated copy of a summons dated 18 May 2013 was later provided, requiring a person with the applicant’s name to attend a court hearing five days after receiving the summons in relation to ‘insulting sacred values, disturbing public opinion and acting against Islam’. In the SHEV interview dated 16 April 2018 he claimed that in a conversation with his mother, he was told that the summons was delivered by a soldier and an officer. He said that the police only went once to his house. He was asked at the Tribunal hearing about how he found out about the summons. He said that his brother told him about it. He said that a police officer brought it to his house and gave it to him at the door.  He said that his brother was not asked where he was, as the duty of the officer is just to present the summons at the address.

6. Not only did there appear to be some confusion about the issue of the summons and who reported it, but the Tribunal finds it unusual that the summons would be issued when he had left the country rather than at the time of arrest of his friends. When this was discussed with the applicant, he said that perhaps they were trying to gather information to know more about him. The Tribunal finds this evidence unpersuasive as he had earlier indicated that the arrests of his friends took place after the conversation. Furthermore, as put to him at the Tribunal hearing, country information indicates a summons would not have been left with his family members. One report states:

   ‘The constitution and penal code require a warrant or subpoena for an arrest and state that an arrested person should be informed of the charges against them within 24 hours.’ The members of the family cannot be served instead of the accused unless they acknowledge that they are aware of the whereabouts of the accused and they will undertake to deliver the notice/summons to the accused. In principle, in criminal cases, the substituted service through members of the family is not acceptable. If the accused cannot be found, the arrest warrant would be passed on to law enforcement officers to arrest the accused whenever and wherever he is found.[34]

   [34] Danish Immigration Service, June 2014, p.41, CIS28931, Austrian Centre for Country of Origin and Asylum

   Research and Documentation (ACCORD), 1 September 2015, p.51

7. He said at the Tribunal hearing that the summons was issued to family members as he was not there at the time, however, this does not accord with the information in this report. While not determinative of the lack of credibility in relation to this matter, it does contribute to the Tribunal’s finding that no summons was issued when the other aspects discussed above are taken into account. Another concern the Tribunal had about the evidence of the summons was that he did not say in the Entry Interview 2013 or in his Statement of Claims dated 14 December 2016 that a summons had been issued. The summons was first provided to the delegate at the SHEV interview on 16 April 2018. During his Tribunal interview he was asked about this and said that it was issued two to three weeks after he left and that earlier he did not have access to his family who may have neglected telling him. This response does not explain why it was not mentioned in the 2016 Application in December 2016 and further, it is not credible that an important event such as an issue of a summons would not have been mentioned to him.

8. Thirdly, it is telling that according to the applicant’s own evidence[35] he departed Iran on his own passport without any difficulties, notwithstanding that his evidence was that the police were about to summons him. As put to him at the Tribunal hearing, the fact that he was able to depart in this manner does indicate that he was not of adverse interest to the authorities.[36] A June 2005 Department of Foreign Affairs and Trade (DFAT) report stated that the passport office in Iran compiles a blacklist of names submitted to them by a number of agencies. DFAT noted that the judiciary, and the intelligence and interior ministries contributed information to the blacklists and that other security forces such as the Revolutionary Guard and Iran’s irregular forces were also rumoured to have input on the lists. The DFAT report listed reasons that could lead to a person being on a blacklist. They included, among others, anti-regime political activities.[37] The applicant said at the Tribunal hearing that he already had a passport, and he does not know how they operate but he was not banned from exiting, and his brothers made connections with people at the airport. The Tribunal is satisfied that if his friends had been arrested and a summons was in the process of being issued, it is likely that he would not have been able to depart so freely, even if his brothers had friends at the airport. This is considered cumulatively with the other factors in finding that the applicant’s friends were not arrested, and no summons was issued, although it is not determinative on its own.

   [35] SHEV interview on 16 March 2022

   [36] ‘DFAT Country Information Report Iran’, 21 April 2016

   [37] DFAT: "Exit procedures from Iranian airports", 21 June 2005

9. Fourthly, the applicant claimed in the 2020 Application that he had converted to Christianity and would face arrest, torture and imprisonment if he returned. In an email dated 22 March 2022 from his representative to the Department, the representative stated that he was instructed that the applicant had decided to withdraw the claim that he was a Christian convert. The applicant was asked at the Tribunal hearing why he would say he was a Christian in the 2020 Application. He said that this was because he changed his mind because he knows every religion has their own benefit but although he leans towards Christianity he did not convert. While not given significant weight, the fact that at one stage he was prepared to claim that he was a convert when he was not, does indicate some propensity to exaggerate for the purpose of bolstering his refugee application. This adds weight to the Tribunal’s finding that his claims that his friends were arrested and he was summonsed were fabricated to bolster his claims, rather than actually happening.

10. For all these reasons, the Tribunal is not satisfied that the applicant’s friends were arrested following a discussion on the campus college about religion, and nor is the Tribunal satisfied that he was issued with a summons. The Tribunal is also not satisfied therefore, as claimed to the Tribunal, that his family members received a few telephone calls from an unknown caller, ‘possibly intelligence’, and his family members told the caller that he had migrated to Australia. The Tribunal is also not satisfied, for the same reasons, that his cousin was questioned about why the applicant had departed Iran or that the Basij had been to look for him three to four times after he left.

11. The Tribunal has not given weight to the copy of the summons provided, given that it has not found the evidence about the arrests and summons credible. The courts have established that the Tribunal may first assess an applicant’s credibility then consider what weight to give to documents.[38] In MIAC v SZNSP [2010] FCAFC 50, the Federal Court found that the Tribunal did not act irrationally by giving no weight to a potentially corroborative witness statement which had been provided by an applicant who lacked credibility. In MIAC v MZYHS [2011] FCA 53 at [31], the Court stated that given its ‘major concerns’ with the respondent’s credibility, it was open to the Tribunal to find that, insofar as the report and the other evidence tended to corroborate the respondent’s account, they were to be given little if any weight. As the applicant in this case has provided a copy of the summons and a translation, it is difficult to assess the authenticity of the document through observation of its features. The 2020 DFAT Country Information Report on Iran states that paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easy to obtain through fraudulent means.[39] Given the credibility findings referred to earlier and the fact that it was provided late in the application process, the Tribunal gives the summons document no weight.

    Has the applicant posted anti-government posts on social media in Australia?

    [38] Re MIMA; ex parte Applicant S20/2002 [2003] HCA 30

    [39] ‘DFAT Country Information Report Iran’, 14 April 2020

12. The Tribunal is satisfied that the applicant has made anti-regime posts on social media in Australia.[40] The applicant has claimed that he had not expressed any views himself and had not engaged in other public activities in support of his non-religious values. However, he had talked to friends in Australia about his beliefs.

    [40] SHEV interview 16 April 2018; Tribunal hearing

13. The [Social media 1] posts included:

    ·A post about [Mr D], titled ‘[Title 1]’;

    ·A post in 2018 showing a photograph of a man being arrested by Basij, titled ‘[Title 2]’;

    ·Posts of him at the gym and elsewhere showing his tattoos, from 2019 to 2021;

    ·A post in 2017 showing executions in Iran; and

    ·A 2017 post regarding backlash against a television host.

14. He told the Tribunal that his settings on [Social media 1] are public so that ‘everyone can see’ as he wants to inform the public about matters such as embezzlement of funds by the Iranian government, forced wearing of the hijab, and executions of dissidents. He said that many people share these posts for public information. He said that he has about 900 to 1,000 followers. He told the Tribunal he had recently put further anti-regime posts on [Social media 2].

15. Although the Tribunal has not accepted that the applicant’s friends were arrested over anti-Islamist conversations or that the applicant was summonsed, the Tribunal does accept that he has political views which are in opposition to the Iranian regime and its connection with Islamism. In Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[41] Foster J stated that ‘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.’ There may for example, be instances where applicants have lied or exaggerated about one aspect of the evidence but this does not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

    Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee.  “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[42]

    [41](1996) 40 ALD 445

    [42] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86

16. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.

17. When asked at the Tribunal hearing about his motivations for posting anti-regime material, the applicant said that he has been making posts for a few years as many Iranians overseas do. He said that it is for the Tribunal to assess, but it was ‘disenchanting’ that the Tribunal would believe it was for the purpose of a visa as he had risked his life to leave Iran and wanted people to know what was happening there. While the applicant is not a political activist, the Tribunal is satisfied that he has consistently expressed views opposing the Iranian government. Initially these views were expressed as a rejection of Islam but they have developed into views pointing out the brutality of the regime in Iran. Asked by the Tribunal if he was aware that posting anti-government material might cause problems for him with the authorities in Iran, he said people ‘have to know’, demonstrating that he feels passionately about exposing what is taking place in Iran.

18. The Tribunal is satisfied therefore that the applicant has posted anti-regime material on social media and spoken to people in Australia about his views out of a genuine wish to inform the public about suppression in Iran, rather than because he was seeking to bolster his refugee claims.

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

19. A person is a refugee if he or she is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country[43].

    [43] Section 5H(1) of the Act

20. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act, which provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the applicant fear being persecuted for one of the stated reasons?

21. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. 

22. The Tribunal is satisfied that the applicant fears being persecuted for reasons of his religious and political views, given the current suppression of opposition in Iran.

    Is there a real chance of serious harm if the applicant were to return to Iran in the reasonably foreseeable future?

23. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[44]; not only must a person fear persecution, but there must also be a prospect of that fear being realised.

    [44] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[45]

    [45] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171

24. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.

25. The applicant has submitted[46] that if he returned to Iran he would be persecuted for apostasy for his ‘theistic views’. The representative referred to the case of Hasan Yousefi Eshkevari, charged in 2000 with insulting sacred Islamic beliefs and denying and repudiating basic tenets of the religion.[47] The Department was also referred to the case of Iranian rapper Shahin Najafi who was accused of denigrating Imams and received death threats. It was submitted that even where a person has denied a particular prophet or one of the fundamental tenets this could amount to apostasy. The applicant submitted that his family and people from his college were aware of his denunciation of Islam. He reiterated to the Tribunal that he feared he would be called an infidel and the punishment would be death. He said that they are ‘killing the youth’ in Iran. He said that in Australia he had been exposed to racist behaviour over the last 10 years and would return to Iran if he could, to see his family, but he cannot do so.

    [46] Statutory Declaration, April 2018

    [47] As documented by the Iran Human Rights Documentation Centre

26. The Tribunal has not accepted that the applicant’s friends were arrested or that he was issued with a summons in Iran. The Tribunal therefore does not accept that there is a real chance of serious harm on this basis.

1. The Tribunal does accept, however, that the applicant has rejected many of the tenets of Islam, and, as confirmed at the Tribunal hearing, ‘leans towards Christianity’ but does not declare himself to be a Christian. The Tribunal also accepts that he has anti-regime views and supports the democracy movement in Iran and has expressed this through conversations in Iran and posting on social media.

2. The Tribunal is not satisfied that any harm would come to him from family members in Iran. Although, in earlier statements, he said that he was worried about family members harming him, he confirmed at the Tribunal hearing that he was only worried about the authorities, although his family may be upset and disappointed in him. This corresponds to other evidence given to both the Department and Tribunal that he is close to his family and wants to see them.

3. The Tribunal is satisfied, for the reasons set out below, that there is a real chance of serious harm from the authorities if the applicant were to return to Iran in the reasonably foreseeable future, because of his actual or imputed political opinion. The Tribunal has taken into consideration his religious views, the fact that he will be a returnee asylum seeker who has lived out of the country since 2013, and country sources about the current situation in Iran.

4. Firstly, while there are many non-religious Iranians who do not appear to be targeted by the authorities, those who actively denounce Islam and the regime may be targeted for harm. 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.’[48] The 2020 DFAT Country Information Report on Iran states, in regard to non-religious Iranians:

   Local sources told DFAT that secularism is widespread, particularly in the major cities and among younger and wealthier Iranians. A significant proportion of the population does not attend mosque or pray on a regular basis, and alcohol consumption is common. Official sources told DFAT that religion was a private matter — that, beyond the expectation that people do not eat in public or hold parties during the holy Muslim month of Ramadan, how one wished to observe Islam was an individual choice, and was not a matter for the state. DFAT heard anecdotally that many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution. [49]

   [48] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), ‘Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation’, 1 September 2015’, p.31

   [49] ‘DFAT Country Information Report Iran’, 14 April 2020

5. DFAT notes, however, that Iranians who renounce Islam are at risk of persecution:

   A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty.. DFAT is unable to verify what proportion of the population is atheist. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, but would generally not be subjected to physical harm. Local sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure. DFAT is unaware of individuals being prosecuted for atheism.   DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.[50]

   [50] ‘DFAT Country Information Report Iran’, 14 April 2020

6. This information suggests that there is widespread secularism and generally atheists do not come to the attention of authorities. However, DFAT reports that under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. There are also charges of the crime of ‘swearing at the Prophet’ (blasphemy) if utterances are made that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. DFAT states that:

   Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.[51]

   [51] ‘DFAT Country Information Report Iran’, 14 April 2020

7. DFAT also notes that in most cases people charged with apostasy also faced other charges related to national security and were executed, but apostasy and blasphemy cases are no longer an everyday occurrence in Iran and death sentences are rare. Instead, authorities continue to use religiously based charges (such as ‘insulting Islam’) against a diverse group of individuals, including cases with political undertones.[52] There was a case in March 2017 in which the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21-year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service.[53]

   [52] ‘DFAT Country Information Report Iran’, 14 April 2020

   [53] ‘DFAT Country Information Report Iran’, 14 April 2020

8. Although the applicant would not be publicly renouncing Islam by converting to another faith, the Tribunal is satisfied that through his social media posts and returning as a failed asylum seeker who has been out of the country since 2013 (discussed further below), he may come to the adverse attention of authorities who could well discover his statements renouncing Islam.

9. Secondly, the Tribunal is satisfied that as the applicant will be returning as a failed asylum seeker who has posted social media hostile to the Iranian regime, he may come to the attention of the authorities for his political views. In the past, country information on the overseas monitoring capabilities of the Iranian government indicated that the authority’s main interest was in higher profile anti-government activists but emphasised that agents were sent to overseas countries. The Immigration and Refugee Board of Canada reported, in February 2021:

   When asked whether Iran monitors overseas anti-government activities, the retired Professor[54] responded that Iran’s government "sends people as agents to other countries" (Retired Professor 25 Jan. 2021). The Assistant Professor[55] indicated that the government "will try to find [anti-government activists] inside and outside of the country" and that the intelligence agency will help gather information (Assistant Professor 23 Jan. 2021). The same source noted that Iran uses refugees to monitor other refugees outside of the country (Assistant Professor 23 Jan. 2021). A December 2019 Associated Press (AP) article reports that in December 2019 an Iraqi man was charged with spying and was sentenced to two and a half years in prison for collecting information about Iranian refugees in Sweden, Denmark, Belgium, and the Netherlands (AP 20 Dec. 2019).

   The Assistant Professor explained that people are "forced and coerced into working with Iranian security authorities" and that authorities will use personal information to pressure them (Assistant Professor 23 Jan. 2021). The same source indicated that "sometimes" prisoners are promised that they will be released if they collaborate (Assistant Professor 23 Jan. 2021). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

   The Assistant Professor also noted that Iran's government monitors political opponents abroad to find out about their activities (Assistant Professor 23 Jan. 2021). The same source noted that the authorities "usually focus on important people, but they are interested in any information that they can use to put pressure on people," such as information about a person's consumption of alcohol or romantic relationships (Assistant Professor 23 Jan. 2021). The retired Professor indicated that Iran's government spies on the opposition and Iranians abroad (Retired Professor 25 Jan. 2021).

   …

   The Assistant Professor stated that the authorities will "hack" for information on a "mid-rank" activist and will monitor "an ordinary Iranian," "because any information is useful" (Assistant Professor 23 Jan. 2021). Based on a report by the cybersecurity company Check Point, a February 2021 article by Arab News, an English-language newspaper published in Saudi Arabia (Arab News n.d.), reports that "Iran is running two surveillance operations in cyberspace, using various methods to spy on more than 1,000 dissidents" and that "[p]eople in Iran, the UK, the US and 10 other countries have been tracked by Iranian hackers" (Arab News 9 Feb. 2021).[56]

   [54] This refers to information provided to the IRB on 25 January 2021 by ‘a retired professor at York University, who has published books and articles in English and Persian on the leftist movement in Iran, religious fundamentalism, secularism, multiculturalism, and the diaspora’: ‘IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021, 20210315091836

   [55] This refers to information provided to the IRB on 23 January 2021 by ‘an assistant professor of political science at the University of Tennessee at Chattanooga, who studies authoritarian regimes with a focus on the Middle East and North Africa and has written about Iran’: ‘IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019–February 2021)’, < IRB, 22 February 2021, 20210315091836

   [56] IRB, 22 February 2021, ‘IRN200457.E - Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)’, <>

   DFAT, in its April 2020 Country Information Report for Iran, played down the monitoring activities of the Iranian regime, except in regard to activists:

   3.113 DFAT assesses that the authorities do not comprehensively monitor Iranians’ online activities. Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.[57]

   [57] ‘DFAT County Information Report Iran’, 14 April 2020, Sections 3.111 and 3.113, pp.44–45.

10. DFAT has maintained that the treatment of failed asylum seekers returning to Iran generally depends on their profile (acquired before leaving Iran or whilst abroad) and their actions on return.[58] DFAT reported in April 2020 that as far as it was aware, the authorities do not check the social media accounts of Iranians returning from abroad.[59]  According to DFAT, this includes posting social media comments critical of the government (noting that heavy internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. DFAT suggests that in such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.[60]

    [58] ‘DFAT County Information Report Iran’, 14 April 2020

    [59] ‘DFAT Country Information Report Iran’, 14 April 2020

    [60] ‘DFAT Country Information Report Iran’, 14 April 2020

11. However, there are also some reports suggesting that the Iranian authorities do take an interest in returnees. In February 2021, a representative of Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into return[ing] to Iran’ to then be arrested.[61] The UK Home Office also provides some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[62]

    [61] IRB, 22 February 2021, 'IRN200457. E -Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', < UK Home Office, ‘Country Policy and Information Notes Kurds and Kurdish Political groups’, May 2022, <>

    DFAT’s Country Information Report on Iran for 2020 is in some respects now somewhat out of date when considering recent events in Iran. In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. The demonstrations, the largest in many years, have evolved into calls for the ousting of the supreme leader, and an end to the Islamic Republic. The security forces have responded with deadly force.[63] An ABC article claimed that HRANA said 410 protestors had been killed in total and 17,251 people arrested as at November 2022.[64] The report also documented the use of batons, electric shocks, pepper spray, tear gas, pellets, plastic bullets and handguns. The Basij is referred to as the key body used to suppress protestors.[65] Protests have involved all classes of Iranians, including lower, middle and upper classes, and different ethnic groups and religions.[66]

    [63] United States Institute of Peace, < News, 21 November 2022, < Human Rights Activists News Agency, September/October 2022, <

    [66] Human Rights Activists News Agency, September/October 2022, <>

    One report on the protests said that there had been unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[67] It referred to the ‘international community’ becoming the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have attention to what is going on in Iran’.[68] Australian Iranians have also become active, calling on the Australian government to sanction the Iranian government.[69] An article in The Australian quotes academic Kylie Moore-Gilbert, who spent more than 800 days in Iran’s Evin prison, as stating that Iranian Australians were calling for tangible action from the Australian government including the sanctioning of officials, listing the Islamic Revolutionary Guard Corps as a terrorist organisation and addressing Iranian government infiltration domestically.[70]

    [67] Human Rights Activists News Agency, September/October 2022, < Human Rights Activists News Agency, September/October 2022, < The Australian, 11 November 2022, < The Australian, 11 November 2022, <>

    A recent report in the Sydney Morning Herald[71] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about her son in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert, who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them. She also claimed that there was a lot of fear in the Australian community due to the involvement of agents and informers in Australia, recording protests, sending threatening messages and letting people know they are being watched. A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began. The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.[72]

    [71] ‘Sydney Morning Herald. ‘Iran cracks down on family of Australian protestors’, 16 January 2023, < ‘Sydney Morning Herald. ‘Iran cracks down on family of Australian protestors’, 16 January 2023, <  The Australian Federal Police has urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[73]

    [73] The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022

    101.   In this environment, where the diaspora including Australian Iranians, is connected to the protest movement in Iran,  and where there is recent evidence of monitoring and harassment of overseas and Australian activists and their families, it is conceivable that the authorities would be observing returnee asylum seekers much more closely than they have in the past. The applicant has been in Australia since 2013, such that there may be particular interest in why he has been out of the country for so long. The Danish Immigration Service report, citing an unnamed source from Elam Ministries, states that those who spent extended periods outside Iran are more likely to be suspected of spying upon return.[74] The UK Upper Tribunal on 21 March 2022 states that returnees on arrival are under close scrutiny.[75] The Tribunal is satisfied that the applicant’s profile as a returnee asylum seeker, who has posted anti-regime and anti-Islamic stories, would draw adverse attention on return. In the UK Upper Tribunal case, ‘XX’ the Upper Tribunal found, (albeit in relation to Kurds)‘discovery of material critical of the Iranian regime on Facebook, even if contrived, may make a material difference to the risk faced by someone returning to Iran. The extent of the risk they may face will continue to be fact sensitive. For example, an Iranian person of Kurdish ethnic origin may face a higher risk than the wider population’ (paragraph 103).[76] In this case, it is perceivable that the applicant’s status as a returnee would create a higher risk for him than for others.

    102.   Additionally, it is reported that within the country the authorities monitor social media.[77] It is likely therefore that they have the tools to monitor social media of Iranians in other countries in the current repressive environment. In the reported case of ‘AB and Others’ the Upper Tribunal also made reference to the opportunistic use of material deemed critical of the Iranian regime and held that:

    We do not find it at all relevant if a person had used the internet in an opportunistic way. We are aware of examples in some countries where there is clear evidence that the authorities are scornful of people who try to create a claim by being rude overseas. There is no evidence remotely similar to that in this case. The touchiness of the Iranian authorities does not seem to be in the least concerned with the motives of the person making a claim but if it is interested it makes the situation worse, not better because seeking asylum is being rude about the government of Iran and whilst that may not of itself be sufficient to lead to persecution it is a point in that direction’ (paragraph 464).[78]

    103.   Although the applicant is not a political activist, nor does he have particular influence, the fact that he has posted anti-regime posts may well draw adverse attention, particularly as he is returning after so long and might be regarded as a member of the activist diaspora even though he is not. His appearance, including the fact that he has tattoos, may increase interest in him, although there are now many men with tattoos in Iran.[79]

    104.   Not only is there the possibility that the applicant’s social media has been noticed, but it is likely that if the applicant were to be questioned, the authorities would become aware that he is a failed asylum seeker and suspect or become cognisant of the applicant’s anti-government opinion. The Tribunal is satisfied that the authorities may well arrest and otherwise physically harm him once they become aware of his social media posts and anti-Islamic and anti-regime views. Where a returnee has expressed their opinion against the government, in an environment where the diaspora has had an important role, and given the conduct of the authorities towards protestors in the last few months of 2022, and to families of Australian activists, the Tribunal is satisfied that there is a real chance of serious harm. Once the authorities are aware of his anti-Islamic posts this could lead to religiously based charges or charges relating to national security, without adequate legal defence, and a likelihood of conviction.[80]

    105.   The Tribunal is satisfied that the chance of harm would be substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379), given the current conduct of the regime and the attitude to the diaspora and would relate to all areas of the country.

    106.   Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the harm would be from the authorities, the Tribunal is not satisfied that effective protection would be available.

    107.   Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The behaviour that is expression of political opinion is an exception as a person is not required to alter or conceal political beliefs.

    [74] Danish Immigration Service

    [75] UK Upper Tribunal, 21 March 2022

    [76] UK Home Office, ‘Country Policy and Information Notes Kurds and Kurdish Political groups’, May 2022, < Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020

    [78] UK Home Office, May 2022, ‘Country Policy and Information Notes Kurds and Kurdish Political groups’, <

    [79] ‘DFAT Country Information Report Iran’, 14 April 2020

    [80] ‘DFAT Country Information Report Iran’, 14 April 2020

    1. The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his political opinion (s 5J(4)(a)), and that his religious views and returnee status would exacerbate the risks to him. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent months towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).

    109.   In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the reason of his political opinion.

    CONCLUDING PARAGRAPH

    110. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

    111.   The Tribunal remits the following matters for reconsideration:

    a. matter 1907439 (Safe Haven Enterprise Visa application made on 29 December 2016 and refused on 30 April 2018) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

    b. matter 2205055 (Safe Haven Enterprise visa application made on 7 October 2020 and refused on 5 April 2022) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Jane Marquard
    Member

    
    

    Attachment A  -  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.

    …

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    Citations

    1907439 (Refugee) [2023] AATA 985

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    MICMSMA v CBW20 [2021] FCAFC 63

    MICMSMA v CBW20 [2021] FCAFC 63

    AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

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