1908008 (Refugee)

1908008 (Refugee) [2022] AATA 3342 (11 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908008

COUNTRY OF REFERENCE: Iran
MEMBER:Ann Duffield
DATE:11 August 2022
PLACE OF DECISION: Canberra
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy 36(2)(a) of the Migration Act.

Statement made on 11 August 2022 at 12:02pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – apostasy charges – local Christian community involvement – house churches – fear of killing – state Protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iran applied for the visas on 16 October 2018. The delegate refused to grant the visas on the basis that they were not persons to whom Australia had protection obligations.
The applicants appeared before the Tribunal on 8 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Leader A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants are represented, and their representative also appeared at the hearing to assist.
The issue in this case is whether the applicants are persons to whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The first named applicant is a citizen of Iran born on [date]. The other applicants are members of her family and include her husband (DOB [date]) and two Children [names and dates of birth].
The applicants arrived in Australia [in] July 2014 on a student visa. They subsequently lodged a Regional Sponsored Migration applicant in January 2016 which was refused and affirmed by a differently constituted Tribunal. They lodged the Protection Visa application subject to this review on 16 October 2018 and it was refused on 28 March 2019.
There is no evidence before the Tribunal that the applicants’ identities are in question and for the purposes of this assessment, the Tribunal finds the applicants’ identities are correct.
The first named applicant’s claims were the only ones dealt with by the delegate. However, at the scheduled hearing she informed the Tribunal that all their claims are the same and asked that each of her family members claims be considered. Out of abundance of caution, the Tribunal interviewed all the applicants and is satisfied that their claims are the same. All applicant’s claims have been assessed in the Tribunal’s consideration below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection Claims
The applicant claims as raised at an interview with the department and recorded in the decision record which has been provided to the Tribunal by the applicant are summarised below:
a.The applicant is from a semi religious family in Iran
b.She lived solely in Iran until she arrived in Australia in 2014
c.Through her interaction with the community and her children’s schooling she became exposed to Christianity
d.She started attending church since late 2018 and she was baptised at [Church 1] in Sydney [in] November 2018. She did an online Christian correspondence course in late 2018.
e.She claims to be under surveillance from the Iranian authorities and decided to cease attending Church
f.The applicant fears that upon her return to Iran she will be persecuted and suffer significant harm because she has converted to Christianity.
The Delegate was not satisfied that the applicant was interested in Christianity in Iran or that she was under surveillance by the Iranian authorities. The Delegate was not satisfied that she had demonstrated a genuine and ongoing commitment to Christianity.
Submissions to the Tribunal
The applicants provided a large number of submissions either through their representative, or individually for the consideration of the Tribunal. The Tribunal also received detailed submissions from the rector of their church. They are referred to where necessary in the consideration of claims and evidence below.
Tribunal hearing
The Tribunal took evidence from each of the applicants separately before taking and confirming evidence with the first named applicant and the family as a group at the end of the hearing. The Tribunal also took evidence from [Leader A] who has been involved with the family since late 2018. The Tribunal found the applicants’ oral and written evidence consistent, truthful and compelling. It is summarised as follows and not necessarily in the order it was provided.
The first named applicant told the Tribunal that she, and each of her family members had been baptised and had converted to Christianity. She said it would be dangerous for all of them if they went back to Iran. As converts from Islam they would be seriously harmed or killed.
The first named applicant’s family were not very religious. Her mother and father divorced when she was around five and her mother remarried. Her observance of the structures of Islam were complied with outside the home, since not doing so would result in arrest and possibly worse. She talked frankly about her concerns regarding the treatment of women within Islam and the harshness of its laws. She told the Tribunal that she always believed in God, but the God of Islam was not compassionate or forgiving.
Even in Iran she was attending spiritual classes and when she came to Australia, she continued looking for something spiritual. She said she didn’t want her children to grow up in an ungodly way. She was happy when they started attending religious schools in Canberra and they talked together about Christianity. She was struck by the kindness and helpfulness of the church community. She said her journey to Christianity and finally conversion was a long one. Her rejection of Islam was not difficult for her as she had never been a committed Muslim. She said that she found a spiritual place for her family and their children, ‘it’s what I always wished for’, she said.
The family was baptised into the church in Sydney rather than Canberra since all have told the Tribunal that the services there were conducted in Persian and so was the baptism. They were also introduced to that church by an Iranian couple they had met in Sydney while operating their business.
After their Baptism the family engaged fully with the Parish of [Church 2] in [Suburb 1]. The initial engagement was probably more pastoral than theological in nature as the family found a caring community during what was a difficult time for them. They did not seek out an Anglican Church as opposed to a Catholic Church, not knowing the differences, but were struck by the kindness and support of that community and believed that the Christian God was the same in all of Christianity even if the practices were different. The [Suburb 1] church is also close to their home.
The rector of that church [Leader A] told the Tribunal that he was not concerned that the family had been baptised only several months after beginning their attendance. The first-named applicant’s children had been attending Anglican schools in Canberra and discussed Christianity with their parents over several years. [Leader A] said that [Leader B], from the Church in Sydney had told him that he was completely persuaded by the genuineness of their conversion and that their acceptance of Jesus was not at all contrived. He said that the church did not accept converts without a thorough testing of their faith. He said that [Leader B] was satisfied that the family’s conversion was based on a thorough understanding of Christianity and the scriptures.
[Leader A] told the Tribunal that anyone’s conversion to a different faith was always a progression and he was impressed with the first-named applicant’s commitment to continuing learning. She attends church regularly and was a committed volunteer. The rest of the family’s attendance was more intermittent, but he was confident of their conversion and that they would all, but particularly the first-named applicant, talk about their conversion and the love of Jesus if they were in Iran. He said that that talking about her faith had come naturally to the first named applicant. He said that he was certain she and the family would continue to attend church if they had to return to Iran, thus putting them in grave danger of significant harm or death.
The first-named applicant’s journey had been a long one, having started to question Islam prior to her departure from Iran in 2014. [Leader A] gave persuasive evidence in relation to his engagement with the family over several years and that he did not waiver in his belief in their commitment to Christianity.
The first named applicants husband also gave credible and lengthy evidence about his own journey to Christianity. The Tribunal has assessed that whilst his was influenced heavily by his wife it has its own significant markers and began at around the time he abandoned Islam twenty years ago. He attends church regularly with the first named applicant and his family.
The first-named applicant’s children gave consistent evidence supporting the claims and account of their parents. They told the Tribunal that they had difficulty adjusting into the public school system when they first arrived in Australia.
[The first named applicant’s] daughter and youngest child, arrived in Australia in the middle of [school grade]. She is currently [age] years old. She went to three primary schools, in [three school locations] in year 5 and then in year 7 she went to [School 1] which [was in a specified year]. She told the Tribunal that she felt uncomfortable in the public schools – in part because of language difficulties and in part because she felt she didn’t belong. She said that the school community at [one primary school] and [School 1] were very welcoming and she willingly undertook religious classes and was baptised with her parents in late 2018 in Sydney. [The daughter] told the Tribunal that in Islam we are servants of Allah but in Christianity we are children of God.
The first-named applicant’s son also gave consistent evidence about the family’s journey to Christianity. He told the Tribunal that his mother’s family in Iran was not religious. He said that Islam was a religion of fear and he didn’t go to Mosque in Iran or Australia. He said that whilst his mother’s family was not religious his father’s family is very religious. He said that the response of his father’s family to their conversion was very bad.
There was a long discussion about the family’s reluctance to discuss their conversion not only with their respective families but the Iranian community in Australia. All gave consistent evidence which is that they are fearful. Most of the Iranian community in Canberra are still practicing Muslims. Those people may tell their families in Iran and if they were forced to return their conversion would be known by some people. The first named applicant’s son had been threatened by some Iranian Muslims who came to their [business] in Canberra. They told him that he and his family have to attend Mosque. He said that he was afraid and believed that those people may harm him or his family. The first named applicant said that without the certainty of being able to remain in Australia, knowledge of their conversion, particularly in Iran, would lead to them all being in danger of significant harm or death.
The family told the Tribunal that they wanted the freedom to be able to practice and talk about and practice their faith without fear of persecution. The first named applicant said that in Christianity God is love and we are all forgiven because Jesus Christ was sacrificed and through this sacrifice all our sins are forgiven.
The Tribunal put to the first named applicant that if they were practising in secret in Australia why would it be different for them in Iran. She said that they did not practice in secret but went to church regularly and volunteered in the community. She said that in Iran they would still try to find a church that they could attend and would talk to anyone who was receptive to learning about Christianity.
Country information
DFAT reports that there are non-Muslim recognised religions in Iran, including certain Christian religions however proselytization by religious minority groups is strictly prohibited under the Penal Code: it is a capital crime for non-Muslims to convert Muslims. As well, none of the three recognised minority religions proselytise or accept converts as members, further:
The activities of recognised Christian communities are closely regulated, to guard against proselytisation. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi, and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Authorities have closed several churches in recent years for failing to comply with these restrictions, including churches that had existed prior to 1979.
Despite these restrictions, community leaders associated with recognised churches report that the authorities respect their religious rights, and their communities are able to act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). A local Christian from Tehran told DFAT they experienced no official or societal discrimination and felt comfortable practising their faith.
DFAT assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT further assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination.
Strict instructions not to minister to Iranians apply to all recognised churches, including the small number of Latin Catholic and Protestant churches in Tehran and elsewhere that cater to expatriates. To enforce this prohibition, authorities closely monitor recognised churches. DFAT Country Information Report, Iran, 14 April 202 at 3.38; 3.39; 3.40 and 3.49
As a result, Iranian Christians who are not members of the recognised ethnic minority churches generally practise in underground ‘house’ churches.
Christian Converts
Christians who have converted from Islam are considered apostates – a criminal offence in Iran. Sharia law does not allow for conversion from Islam to another religion, and it is not possible for a person to change their religious affiliation on personal documentation. There are reports of some Christian converts (and sometimes their family members) facing physical attacks, harassment, threats, surveillance, arrest, detention, as well as torture and ill-treatment in detention. Simply converting to Christianity is not considered enough to put a person at real risk of persecution. The convert’s actions and activities and the degree to which their conversion is ‘visible’ will determine whether or not they would be at real risk. Those who have converted from Islam and whose conversion is likely to come to the attention of the authorities in Iran through evangelical or proselytising activities would be at real risk of persecution on return. In addition, those who have previously come to the adverse attention of the authorities for other reasons, are likely depending on the nature of the adverse attention, to be at real risk of persecution. A number of Iranians convert to Christianity and get baptised while in Europe. Some sources suggest that a person who has converted to Christianity abroad and returned to Iran would only be at risk if the authorities previously had an interest in their activities in Iran, or if the convert would engage in evangelical or proselytising activities. Because of a general government suspicion of contact with the outside world those persons who convert whilst abroad may be seen as more of a threat than those who have converted whilst in Iran ‘Country Policy and Information Note - Iran: Christians and Christian converts’, UK Home Office, 27 February 2020, p.7 and 8.

The DFAT report notes that religiously-based charges are possible in Iran. The report states that:
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The 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....
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, 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. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison. DFAT Country Information Report – Iran, 14 April 2020 at 3.73–3.77
CONCLUSIONS
The Tribunal has carefully considered the oral and written evidence provided by the applicants, along with country information and is satisfied that they have all converted to Christianity and that the conversion was genuine at the outset and has grown over time. The Tribunal is satisfied that their conversion was not done for the purpose of strengthening their claim for refugee status.
The applicants submit that they face a well-founded fear of persecution on return to Iran due to their conversion to Christianity and subsequently, as apostates.
The applicants are active members of their local Christian community in [Suburb 1] and they do not practice their faith in isolation, nor do they want to. The first named applicant told the Tribunal that she wanted a spiritual relationship with God and this she has found through a church.
The Tribunal accepts that if the applicants returned to Iran they, in particular the first named applicant, would seek to attend a Church. The only church available to them would be a House church since, as converts, they would not be accepted into the recognised churches. The first named applicant has said that she would speak to anyone who asked about Christianity.
The country information above indicates not only that Christianity in Iran is subject to Government regulation but that converts may be subject to the death penalty. The Tribunal recognises that the information above indicates that the Government is focused more on proselytising than on private conviction and if practised discreetly people are unlikely to come to the adverse attention of the authorities. However, the Tribunal also notes that individuals seeking protection are not required and cannot be expected to take steps to avoid persecutory harm or to live discreetly to avoid such harm.
Tribunal is satisfied that the first named applicant would speak out and attend church should she return to Iran, regardless of the persecution that she knows she would face. The Tribunal is satisfied that the other applicants would continue to attend Church and speak of their faith and seek out other Christians should they be required to return to Iran were it not for their fear of persecution.
For the reasons above and having regard to the country information concerning Christian converts in Iran, the Tribunal is satisfied that the applicants face a real chance of serious harm from the Iranian authorities, and others, should they return to Iran now or in the foreseeable future. The Tribunal is satisfied that the applicants’ religion is the essential and significant reason for the persecution which they fear and that the persecution which they fear involves systematic and discriminatory conduct in that it is deliberate for reason of their religion and as converts to Christianity.
State Protection.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
Since the Iranian government is responsible for the persecution that the applicants fear, the Tribunal is not satisfied that the effective protection measures as per s.5LA are available to the applicants in Iran provided by the state, party or organisation.
Relocation
For the same reasons, the Tribunal is not satisfied that there is any part of Iran in which the applicants would be safe from the persecution that they fear as Christian converts. The Tribunal is satisfied that the applicants would face a real chance of persecution in all areas of Iran and therefore satisfy s.5J(1)(c).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy 36(2)(a) of the Migration Act.
Ann Duffield
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3342

11 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction