1908197 (Refugee) - [2023] AATA 4844

1908197 (Refugee) [2023] AATA 4844 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Leske
CASE NUMBER:  1908197
COUNTRY OF REFERENCE:                   Iran
MEMBER:Brendan Darcy
DATE:15 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 15 December 2023 at 11:21am
CATCHWORDS
REFUGEE – protection visa – Iran – Faili Kurd – discrimination due to parents’ birth in Iraq – arbitrarily questioned and detained – accused of being a political dissident – apostasy claim – conversion to Christianity – Salvation Army denomination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A, 65, 375A, 411, 473B, 499
Migration Regulations 1994 (Cth), Schedule 2, rr 1.12, 1.05A
CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577
DBB16 v MIBP (2018) 260 FCR 447
DFO19 v MICMSMA [2023] FCAFC 38
Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
McDonald v Director-General of Social Security (1984) 1 FCR 354
Nagalingam v MILGEA & Anor (1992) 38 FCR 191
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of the Islamic Republic of Iran (Iran), applied for the visas on 23 December 2016.
The first named applicant [will] be referred to as the applicant or first applicant while the second named applicant [will] be referred to as the second applicant or the applicant’s mother.
The applicants arrived in Australia’s international waters as irregular maritime arrivals [in] May 2013. Specifically, the applicants were intercepted within Australia’s Ashmore and Cartier Islands Territory in the Indian Ocean. The first applicant was allocated the Boat ID: [deleted], while the second applicant was allocated the Boat ID: [deleted].
In an entry interview, the second applicant was interviewed by the delegate of the Minister on 3 June 2013 while in immigration detention in Darwin. Regarding their identity, the second applicant claimed to an Iranian citizen of Faili Kurdish background. The second applicant said she had been born in Iraq but was stateless for a period of time in Iran. The second applicant claimed the applicants left Iran because they cannot find work and that there was discrimination based on their Iraqi background.
In an entry interview, the first applicant was interviewed on 5 June 2013. The first applicant claimed he came to Australia based on discrimination towards Kurds from Iraqi backgrounds.
The s 46A bar was lifted on 18 April 2026 and the applicants applied for a combined Class XE Subclass 790 Safe Haven Enterprise visas (SHEV) application on 26 December 2016.
On 19 June 2017, the delegate refused to grant the visas on the basis that the applicants did not face a real chance of serious harm or a real risk of significant harm on return to Iran for any reason including their ethnicity, any claimed political profile, or as failed asylum seekers.
As a ‘fast-tracked reviewable decision’, the matter was referred to the Immigration Assessment Authority (IAA).
On 23 November 2017, the IAA reviewer affirmed the decision not to grant the applicants a protection visa in separate decisions. The applicants subsequently appealed the decision to the Federal Circuit Court of Australia (FCCA).
Following the Full Federal Court judgment in DBB16 v MIBP (2018) 260 FCR 447 (DBB16), the applicant is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act) due to this arrival method. Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and the subsequent decision to refuse to grant the applicant a TPV is not a ‘fast track decision’ (as defined in s 5(1)). Instead, it is a Part 7-reviewable decision able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411 of the Act.
[In] November 2018, the Federal Court of Australia discontinued the appeal proceedings before the FCCA. The matter was then referred to the Tribunal on 4 April 2019.
The applicants appeared before the Tribunal on 2 October 2023 to give evidence and present arguments. This hearing was adjourned.
A resumed hearing was held on 20 November 2023. The Tribunal also received oral evidence from Majors [A] and [Major B] from the Salvation Army who gave evidence in relation to the first applicant’s religious convictions.
They were assisted by interpreters in the Persian (Farsi) and English languages at both hearings.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The first applicant was born on [date] in Tehran, the capital of Iran.
The second applicant was born on [date] in Baghdad, the capital of Iraq.
Both are citizens of Iran, as evidenced by submitted translated identity documents.
Prior to the applicants’ arrival, the first applicant’s sole sibling[born] in [year], had arrived in Australia in October 2012 prior the applicant’s arrival in April 2013.
The s 46A bar was lifted on 18 April 2026 and the applicants applied for a combined Class XE Subclass 790 Safe Haven Enterprise visas (SHEV) application on 26 December 2016
The applicants’ claims for protection and supporting evidence are contained in [file number].
First applicant’s written claims at the time of application
By way of summary, the first applicant advanced these claims at the time of application:
The first applicant is a Faili Kurd and a Shia Muslim. He was born in Tehran to Kurdish Faili parents who were originally from Iraq. Ever since the first applicant was a young man he felt discriminated against due to his identity. Examples of discrimination that the first applicant had experienced included:
·     His family being issued documents that make it apparent they are refugees – including placing a large red label across pages of their birth certificates ‘causing obscurity, or what is referred to as a second edition instead of an original.’ Further there is a note in his birth certificate that his parents were born in Iraq with birth certificates from the foreign ministry.
·     The first applicant’s access to education was inhibited and he was ‘rejected from enrolling in numerous schools while growing up.’ They were also charged tuition fees when education is state sponsored in Iran. His brother [was] removed from school because the family could not afford to pay his fees.
·     The first applicant was cursed and sworn at on countless occasions for being a Kurd or accused of being an Arab. His instructor failed his driving licence test because of his father’s name. He was laid off from his job at [employer] - his boss apologised and informed him that senior bosses had seen his documents and asked him to fire the applicant.
The first applicant further claimed he had been arbitrarily questioned and detained by state authorities on countless occasions. His first encounter with authorities was at age [age] when he was removed from class and questioned about his identity and family’s origins. This continued in the years that followed and intensified as he grew older.
When the first applicant was [age], he was taken to obscure locations and asked leading questions about his views on political dissidents and his uncle who currently lives in [Country 1].
The last two times the first applicant was interrogated it was under extremely harsh conditions. During this interrogation the first applicant was accused of being a political dissident. He was asked about his movements and about whom he was seeing on each day. He pleaded his innocence and did not admit to anything – which was not taken well by the interrogator who furiously began beating him. He was thrown on the ground and beaten and suffered a bloody nose, torn eyebrow and bruising across his neck and back.
This was not the first time the first applicant was beaten as there was another incident a few years prior while he was attending university. On this occasion he was being questioned and began demanding his rights which set off the authorities who beat him.
The first applicant believes these incidents occurred to him because he had been identified as a political dissident by Iranian intelligence agencies. This would be in keeping with the government’s typical suspicions against members of the Kurdish minority.
In late 2012 and 2013 the applicant’s mother (the second applicant) was ill ‘with numerous afflictions’ and was rejected care by medical professions. His mother had [medical condition] in 2005 and needed ongoing [treatment] and tests but this was not being administered. Just prior to leaving Iran the second applicant had a [medical] problem which needed operation, however the hospital cancelled appointments for surgery. The second applicant would plead with hospital staff to assist her as it was crucial to her wellbeing but to no avail. The hospital staff would simply tell the second applicant to go elsewhere if he was not happy.
The first applicant also fears serious harm and death because a ‘very distant relative named [Relative 1]’ has threatened to punish his immediate family. ‘[Relative 1] informed my relatives in Iran that he believes my family has escaped Iran with stolen money to live comfortably in Australia.’ [Relative 1]’s children have personally threatened the first applicant and he has been too afraid to report this to the police. He believes these threats are because he has become aware of certain information about their family in Australia – that they have rorted the system.
The government of Iran has executed persons from the applicant’s ethnicity for suspecting them of dissidence. It does not afford ethnic minorities a fair trial. This includes members of the applicant’s extended family. The Iranian intelligence agencies have a file on him because of his minority status and also because of his outspoken [uncle].
The first applicant fears his chances of persecution will be exacerbated by his travel to Australia. Iranian authorities are extremely suspicious of Kurdish minorities and assume they flee the country in order to become dissidents.
First applicant’s written claims at the time of application
By way of contrast, the second applicant were limited. She had claimed to have personally felt hate and animosity harboured toward persons from the Kurdish Faili ethnicity during my time in Iran. She also details numerous health conditions, particularly over the past decade which have been overlooked and neglected by health care professionals in Iran.
Departmental interview and the delegate’s decision
The first applicant was interviewed by the department on 17 March 2017. The second applicant declined to be interviewed.
On 19 June 2017, a delegate acting on behalf of the Minister refused to grant the applicants protection visa. As outlined above, this matter was ‘fast tracked’ for merits review with the IAA. The IAA made a decision on the applicants’ applications for review in separate decision and the applicants subsequently sought judicial review. [In] November 2018, the Federal Court of Australia discontinued the appeal proceedings before the FCCA. The matter was then referred to the Tribunal on 4 April 2019
Evidence before the Tribunal
On 25 September 2023, the Tribunal received a pre-hearing legal submission prepared by the applicants’ representative, and statutory declarations signed by the first applicant. They were dated 17 August 2020, 28 April 2022 and 8 August 2022.
Also attached were a number of copies of documents claimed to be from the Iranian authoities:
·     Translated copy of Justice Decision of Islamic Public of Iran dated [2019];
·     Translated letter from the Ministry of Intelligence dated [2013];
·     Translated letter from the Ministry of Intelligence dated [2009]; and
· Translated summons dated [2013].
The applicants’ representative also provided various written letters of support for the first applicant as a convert to Christianity. Of particular interest were the letters by [Major A] dated [December] 2022 and [July] 2023, by [Major B] from the Salvation Army dated [September] 2023, and other Salvation Army congregants attesting to the integrity and faith of the first applicant as an active participant in Christian services and religious instruction.
The applicants appeared before the Tribunal on 2 October 2023 to give evidence and present arguments. This hearing was adjourned due to its longevity.
On 16 October 2023, the Tribunal received to consider for a resumed hearing.
·     A bank statement for the period 11 March 2023 – 10 June 2023 with numerous transactions where the first applicant has been paying for household necessities;
·     A bank statement for the period 11 June 2023 – 10 September 2023 also showing numerous transactions where the first applicant is paying for household necessities;
·     Electricity bill for the applicants’ shared household dated 19 June 2023;
·     Gas bills for the applicants’ shared household showing, dated 7 June 2023 and 24 July 2023;
·     A mobile phone bill for the first applicant;
·     Evidence of medical appointment bookings at [a] Medical Centre for the second applicant, linked to the email address of the first applicant; and
·     [Health district] medical appointment confirmation listing contact number in relation to the first applicant.
There was also attached a statutory declaration signed by the first applicant. Date 13 October 2013 outlined his conversion to Christianity, namely to the Christian denomination known as the Salvation Army. Below is an extract from that statutory declaration:
11. The Salvation Army doesn't have a baptism but when I accepted Jesus Christ as my Lord and Saviour, this was marked by a private ceremony at home with [Major A], followed by an announcement during a Sunday service. [Major A] introduced me and we spoke and prayed. This was also where I received a course completion certificate for completing Bible study which took a few months of meeting almost every Friday. This was at the Farsi service so other Iranian people were there.
12. I now attend the morning services at [location] most weeks, however if I can't make it, I join the live stream services in the afternoon.
13. Many verses of the bible show that the base of the religion is about loving and helping
others. The bible and Christianity gives you encouragement to help other people. We are
looking to make Jesus happy and helping people is a way to do this.
14. This is very important to me in terms of me converting. I believe this conversion has given
me a new perspective and I love the fact that helping others is such a central part of the
Church
15. ln lran I was bullied and rejected, I am now in the opposite situation. Christianity is all about
looking after each other - so I believe this religion has changed me.
16. My faith is deepening as time passes. I saw all of the energy and love within the Church
before, but when I was the subject of their prayers, that gave me another boost. I felt their
love and energy. They all saw me and that I needed help, and offered their support to me.
17. I have observed significant differences between lslam and Christianity, particularly in their
authenticity and focus on faith and helping others.
18. ln Iran, religious identity often played a role in job interviews and daily life, for example, when you go for a job interview, the questions were not related to your experience, but about what morning prayers are like. It was the same for applying to go to university.
19. I as born into Islam and was encouraged to learn it but was never forced. My parents never forced me to practice Islam but taught me to be good to people no matter what their religion is. The way that you pray according to Islam was strict and rigid and I think that it is more focused on how you pray and how you dress or what you eat. For example I found with Islam that people would say "l am praying a lot, I am a good person," or "what I am wearing shows I am a good Person." ln contrast, Christianity emphasises faith and goodness towards others, regardless of external factors like clothing or dietary choices. I find Christianity authentic and meaningful.

On 16 October 2023, the Tribunal received several documents and statements about the applicants’ claims, including:
·     A five-page statutory declaration dated 13 October 2023 by the first applicant outlining his claims to be a genuine Christian convert and to have become an adherent to the Christian denomination known as the Salvation Army while in Australia;
·     Banks, utility and phone statements pertaining to the first applicant;
·     Medical appointments pertaining to the second applicant; and
·     An emergency department health summary pertaining to the second applicant’s symptoms following ‘a shaking episode’ dated 9 December 2022;
As mentioned above, a resumed hearing was held on 20 November 2023. At the end of the hearing, the applicants’ representative undertook to provide some medical or psychological evidence about the second applicant’s mental health assessment.
On 29 November 2023 and 1 December 2023, the Tribunal received a mental health assessment prepared by [Organisation 1] and accompanying documents in relation to the second applicant.
No further submissions were received by the Tribunal.
Non-disclosure certificates
On the departmental file is a non-disclosure certificate issued to the IAA under s s 473B of the Act. The certificate directed the IAA not to disclose to the applicants or the applicants’ representative any document or matter contained in the document, or information given to the Minister, or an officer of the Department, in confidence.
When the Tribunal examined it as part of this review, it found the certificate to have been invalidly issued as it was applicable to the IAA and not the Tribunal. The Tribunal requested the Department to issue a certificate under the Act’s powers as they pertain to the Tribunal.
On 4 December 2023, the Tribunal received a non-disclosure certificate issued under s 375A of the Act regarding the disclosure of certain information, signed and dated by a delegate on behalf of the Minister, indicating that it would be contrary to the public interest to provide information given to the Department in confidence. This certificate applied to this matter under review.
The Tribunal is satisfied that this certificate has been validly issued.
As the Tribunal is setting this matter aside, it was not germane to it whether the information subject to the non-disclosure certificate was relevant as the reasons or part of the reason for affirming the decision not to grant the visa. Accordingly, the information was not shared with the applicants under the Act’s adverse information provisions.
ASSESSMENT OF CLAIMS AND FINDINGS
Identity and country of reference
According to the delegate’s decision record, key Iranian identification documents ‘are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use’.[1] According to the same decision, the documents conform to standard examples of documents of this type and they found no anomalies. The applicants provided NAATI-accredited translations of these documents. The names and dates of birth on the applicants’ identity documents are consistent with their claimed identity.
[1] DFAT Country Information Report: Iran, 21 April 2016.
The applicants have never claimed to be a stateless Faili Kurds. They have, however, claimed severe discrimination on the basis of the first applicant being born in Iraq and later expelled from Iraq in 1980 by the then Iraqi President, Saddam Hussein, and she was denied Iraqi citizenship for a period of time. It is accepted that the second applicant was born in Iraq to Faili Kurdish parents, and that she was stripped of her Iraqi citizenship when she was expelled from Iraq at the age of about [age]. It is also accepted that second applicant and her husband were granted Iranian citizenship several years after migrating to Iran and after their two sons were born.
Based on this assessment, the Tribunal is satisfied the applicants are of Faili Kurd ethnicity, and that they are Iranian citizens.
On the basis of copies of the applicant’s Iranian identity documents, the Tribunal is satisfied that the applicants are citizens of the Islamic Republic of Iran, and not without nationality. The Tribunal accordingly finds that Iran is their receiving country for the purpose of assessing the claims of both the applicants under ss 36(2)(a) and 36(2)(aa).
Third country protection
The applicants do not claim to have Iraqi citizenship, although they may be eligible due to the second applicant’s being born in Iraq and the first applicant’s Iraqi background in the context of the change of Iraqi citizenship laws since 2002 for expelled Iraqis.
There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any other country for the purposes of s 36(3).
Claims and credibility findings
It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196–197 and 203–204, recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants, a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations.
However, decision makers are not required to accept uncritically any or all allegations made by an applicant. Moreover, decision makers are not required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality: see Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
First applicant’s accepted personal circumstances
The Tribunal accepts that the first applicant was born in Tehran in [year], as claimed. The Tribunal accepts that the first applicant’s father passed away in 2007 and his mother remained a widow. He also has a grandmother back in Iran. It accepts that he is the younger of two siblings both currently living in Australia. Educated in Tehran and reflecting his accepted ethnicity as Faili Kurdish from an Iraqi background, the first applicant can speak, read and write in Farsi, and he can converse in and understand the Kurdish language in the Faili dialect.
It is also accepted that while the first applicant was brought up as a Shia Muslim.
With regard to the first applicant’s educational background, the Tribunal accepts he completed secondary school and that he did not attend higher education.
With regard to the applicant’s employment history in Iran, the Tribunal accepts that it has been limited and low in renumeration. It is also accepted the first applicant is currently [working].
The Tribunal notes that the first applicant completed compulsory military service while in Iran, which the first applicant claimed to have been exploitative in nature.
The first applicant has never married or lived in a de facto relationship, either in Iran or Australia. However, he had been engaged to marry to an Iranian citizen prior to departing Iran. In addition, he does not have any children.
Second applicant’s accepted personal circumstances
The Tribunal accepts that the second applicant was born in Baghdad in [year], as claimed, and forced into exile by Saddam Hussein by travelling to Iran for refuge. It is relatedly accepted the second applicant had been stateless in Iran until she obtained citizenship, probably through bribing officials, sometime after about 1988. The Tribunal accepts that the second applicant is a widow and her mother lives in Tehran. She has three brothers – two of whom live in Tehran and one in [Country 1]; and four sisters, two of whom reside in Tehran, one in [Country 2] and one in Sydney.
It is also accepted that the second applicant was brought up as a Shia Muslim and that she remains a Shia Muslim.
The Tribunal accepts the second applicant completed up to year [grade] equivalent in schooling but has been a homemaker since her marriage at the age of [age] and has no or little labour market experience. The second applicant’s husband, also a Faili Kurd from an Iraqi background, had been an [occupation]. The second applicant has only two sons and no daughters. When her husband died, the second applicant did not remarry.
Submitted to the Tribunal is written and documentary evidence that the second applicant has gone through a number of health challenges arising from [health issues]. There are also a number of mental health challenges evident from this evidence, including a history of suicide attempts and hospitalisation in an Australian psychiatric ward. The Tribunal accepts this.
Adverse credibility findings
As it is setting this matter aside, the Tribunal does not intend to make exhaustive credibility findings in this decision. Nor does it intend to put information it has heard from the written and oral evidence arising from the protection visa application involving the first applicant’s brother (the second applicant’s other brother), or from the information arising from any oral evidence attached to his departmental file or information subject to a validly issued non-disclosure certificate.
As outlined above, the first applicant has made a number of claims that he and his mother departed Iran after a series of escalating incidents leading him to become a person of interest to the authorities. Many of these claims were reliant on his brother’s claims to be as a whistle-blower or informant, and that these fears were related to his ethnicity and his imputed political opinion. The Tribunal does not accept these specific claims.
Considerably later in the lifespan of this Protection visa application, the applicants lodged a number of documents as evidence that the first applicant was a person of interest. Without exhaustively explaining those reasons, suffice to say the Tribunal finds each of those documents to be bogus.
When cumulatively considering the first applicant’s claims in this regard, these specific claims about past events of harm and that he and his brother are persons of interest have been contrived. The first applicant did not hold such genuine or deep or urgent fears of persecution based on these contrivances because he was a whistle-blower or for his political opinion, imputed or otherwise, either at the time of arrival or at the time of application, or even at the time of making this decision.
The Tribunal takes no pleasure in making these adverse credibility findings. The applicants struck the Tribunal as otherwise conscientious and caring persons.
Nonetheless, the Tribunal has considered whether reasons arise from any of the applicant’s otherwise accepted circumstances as a result of which the applicants meet the threshold of holding a well-founded fear of persecution for one of the five nexus reasons under s 5J(1)(a), should they return to Iran in the reasonably foreseeable future.
Claims arising from being a failed asylum seeker/forced returnee
As discussed during the first hearing, the applicants stated that if they had to return to Iran he would not do so voluntarily.
On 19 March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters (the MOU) that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.[2]
[2] DFAT Country Information Report: Iran, 14 April 2020 p.70.
Charlesworth J in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 stated at [64] that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’
In having regard to this, the Tribunal invited the applicant’s representative to consider the authority of this approach given it had been upheld in DFO19 v MICMSMA [2023] FCAFC 38 (DFO19) by the Full Federal Court of Australia (FFCA). The FFCA dismissed the application for judicial review of the decision by the Administrative Appeals Tribunal. The applicant in DFO19 claimed, among other things, to face harm as a failed asylum seeker. The applicant in that matter said during the Tribunal hearing that he ‘cannot return voluntarily’ to Iran. In considering whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran under s 36(2)(aa) of the Act, the Tribunal in DFO19 considered the prospect of both involuntary and voluntary return. It concluded the Iranian government would not revisit its practice of not accepting involuntary returnees who arrived in Australia before 19 March 2018, the date of the MOU. The Tribunal considered that the Department would not return him involuntarily. If he persisted in not returning voluntarily, he would not return and as such would not face a real chance of serious harm (for the purposes of s 36(2)(a)) or a real risk of significant harm. The Tribunal in that matter also considered the circumstances if he were to return voluntarily, taking account of the circumstances he would face, and found he did not face a real chance of serious harm or a real risk of significant harm. The FFCA found no jurisdictional error.
The relevant claims and circumstances of the applicant in DFO19 and of the applicant in the present matter are similar as both arrived in Australia before the abovementioned MOU was signed. Therefore, if his claims for asylum were unsuccessful, the applicant would be faced with the choice of either indefinite detention in Australia or voluntary return to Iran.
Since the High Court of Australia decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor in November 2023,[3] indefinite detention is no longer lawfully available for administrative purposes. In lieu of this, the applicants are likely to be granted restrictive bridging visas on a long-term or indefinite basis or to consider voluntary departure.[4]
[3] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37. Pronouncement of orders by the Full Court was made in Canberra on 8 November 2023.
[4] ‘Legislation in response to NZYQ high court decision’, Minister for Home Affairs, 16 November 2023, >
Based on this authority and the relevant facts which indicate that the applicants will not be forced to return to Iran for the foreseeable future, the Tribunal finds that the applicants do not face a real chance or a real risk of being an involuntary returnee and therefore, being subject to the kinds of interrogations on arrival that Iranian failed asylum seekers are typically subject to and during which incriminating or negatively implicating information about the applicant’s sur place activities can be discoverable by the authorities.
As such, the Tribunal finds that the applicants do not face a real chance of serious harm or a real risk of significant harm for reasons of being failed asylum seekers returning to Iran, even when cumulatively considering their ethnicity, their religion, their political opinions whether imputed or actual, or for any other reasons mentioned under s 5J(1)(a). Nor are there any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to his country of reference, there is a real risk of significant harm of any kind mentioned under s 36(2A) arising from the applicants being forced returnees or failed asylum seekers.
Voluntary return
Alternatively, the Tribunal has also considered the circumstances if they were to return to Iran in the reasonably foreseeable future voluntarily and any integers that are associated with this, including her extended period abroad, either on arrival or in the Iranian community.
According to some international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report those Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.[5] This country information indicates that the authorities will have even less interest in voluntary returnees from Western countries on arrival. Given the applicants are not high-profile political dissenters or apostates, the Tribunal assesses that there is only a remote or far-fetched chance of interview on arrival as voluntary returnees. It follows, therefore, that the applicant only have a remote and far-fetched chance, and not a real chance, of serious harm arising from her sur place activities in relation to being apostates from Islam and political demonstrations, including her social media activities, and in combination with her Kurdish or Faili Kurdish ethnicity on arrival, either now or into the reasonably foreseeable future.
[5] DFAT country information report on Iran, 14 April 2020 p.70
In making that finding, the Tribunal is now required to consider whether Australia owes the applicants any protection obligations while in the community, should they return on a voluntary basis as it arises under s 36(2)(a) and s 36(2)(aa).
The first applicant’s apostasy claims
In the context of the adverse credibility findings above, the Tribunal has considered whether the first applicant has contrived claims that he is not only formerly a Muslim, but a convert to Christianity.
The first applicant has provided written statements and witness accounts that he began exploring an interest in Christianity in 2021 after a long period of disillusionment and had been referred by a Persian speaking co-worker and congregant of the Salvation Army to undertake a ‘Christianity Explained’ course. At the conclusion of this course, the first applicant claimed to have accepted Jesus Christ as his Lord and Saviour and was accepted into the Salvation Army when he publicly confessed his commitment [in] January 2022. Since then, the first applicant has been active in [two locations] faith fellowships.
The Salvation Army in Australia is part of an international Christian movement that started in the 1860s when evangelical Methodist ministers, William and Catherine Booth, began a mission to meet the physical and spiritual needs of the poor in London. It is a Protestant Christian Church with a theology derived from Methodism, an earlier Protestant movement based on the theology and practices derived from John Wesley and others, which became a rival to Anglicanism in the eighteenth century (especially in Wales and Cornwall in the United Kingdom and parts of colonial and later revolutionary America, where many were involved in the movement to abolish slavery). Methodism was notable as a Protestant church which rejected aspects of Calvinistic doctrines like predestination in favour of free will. The Salvation Army is organised around a Salvation Army corps in which more senior members wear uniforms and hold military like ranks as titles and ordinary disciples are referred to as soldiers. It does not celebrate the Christian sacraments of baptism or communion but is otherwise ‘Gospel’ centric in its evangelicalism. The Salvation Army is well known in Australia as being dedicated to charitable works for the destitute.

At the hearing, the first applicant outlined to the Tribunal that his disillusionment with Islam had been triggered by the Muslims who had justified the harsh laws and practices towards girls and women in Iran, and the harsh punishments for those who are not compliant with the authorities in the Islamic Republic.
The applicant also explained that he had not acted on this disillusionment earlier because of the night shifts for work, and because his care responsibilities towards his mother were very time consuming and not suitable for meeting other like-minded people. However, during the public health emergency caused by the Covid-19 pandemic between early 2020 and early 2022, the first applicant had time to consider aspects of his life, including the role of religion.
Without being an arbiter of doctrine but acknowledging the first applicant had been undertaking coursework about Christianity over a sustained period, the Tribunal enquired into the depths of the first applicant’s understanding of his new faith. In some detail, the first applicant recounted the story Jesus in Matthew’s gospel when there was a storm in Galilee Sea, and in another story when a sick woman touched Jesus’ cloak – an act of faith for which she was miraculously cured. The first applicant explained that these were examples of faith’s power when it is placed in Jesus as the founder of Christianity and that he found these inspirational and instructive.

100. Otherwise, the first applicant described himself as an introverted person with little social media presence about his Christian faith, indicating he was not a proselytising convert. However, the first applicant claimed he could not return to Iran as he could not be able to talk to anyone about his faith without attracting adverse attention by those who oppose apostates to Christianity.
101. The Tribunal also received oral evidence from [Major B] and [Major A] who attested that the first applicant has been demonstrating insight into aspects of the Christian bible that they had studied which resonated with his experiences as refugee or migrant to Australia. They also attested to his commitment to attending the Salvation Army services on a regular basis.
102. Based on the overall evidence, the Tribunal finds, on balance, that the first applicant is an apostate from Islam who has publicly converted to Christianity and is a practicing and committed member of the Salvation Army.
103. In reaching this decision, the Tribunal has placed considerable weight on his conversion to Christianity by the evidence of the witnesses at the resumed hearing testifying to the depth of the first applicant’s commitment to religious education in the Christian bible and in participating in Christian services on a regular basis. While the lateness of these claims as a convert to Christianity has invited credibility concerns, there are no reasonable grounds for the Tribunal to find that the first applicant has advanced his conversion to Christianity as sur place activities solely for the grant of the visa based on the overall evidence.
Apostasy claims: harm arising from claimed conversion to Christianity
104. It is the first applicant’s accepted claim that he has rejected Shi’a Islam in favour of Christianity and that he has been accepted into the Salvation Army as ‘an adherent’ in or early 2022. Taking this into account with credible witnesses that the first applicant has been partaking in Christian church services and lessons over a continuous but not a lengthy period, the Tribunal is satisfied the first applicant is an apostate who has rejected Shi’a Islam in favour of an evangelical denomination of Christianity.
105. As the Tribunal does not accept the first applicant has a real chance of serious harm as a failed asylum seeker, it has considered he will be able to voluntarily return to Iran as an apostate and resettle in the community. Country information from DFAT states in the context of genuine Christian converts:
3.34 International observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytization or political activities within the country.

106. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low.
107. DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses those Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. In this matter, the first applicant has suggested that he is a proselytising evangelical Christian, but it does not accept this. Neither does he have the kind of social media profile of interest to attract the authorities that would be more than a remote chance of his arrest on arrival or in the community. The Tribunal does not accept that he has a real chance of his apostasy to Christianity coming to the attention of the authorities for this reason.
108. Notwithstanding the operation of 5J(3) of the Act, the Tribunal accordingly finds that the first applicant does not hold a well-founded fear of persecution on the basis of low-profile religious conversion, should he return to Iran on a voluntary basis. On the evidence before it, including the country information referred to above, the Tribunal finds that the first applicant in voluntarily returning to Iran will be able to discreetly practise his religion with only a remote or insubstantial chance of the first applicant suffering serious harm for reasons of their Christian faith.
109. Neither are there substantial grounds for the Tribunal to believe that the applicant, on return to Iran on a voluntary basis, will suffer a real risk of significant harm as a Christian convert based on the same considerations.
Behaviour modification
110. Section 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic: part (a); or be required to do anything to alter his or her religious beliefs, including by renouncing a religious conversion, or to conceal his or her true religious beliefs, or to cease his or her true religious beliefs to be involved in the practice of his or her faith: part (c)(i).
111. At the end of the hearing, the Tribunal sought a further submission with the matter of the applicability of s 5J(3) to be specifically outlined. The Tribunal notes that the first applicant has chosen a Christian denomination for which undertaking charitable works is central to this evangelical mission and that he is active in his faith community which includes other Persian speaking migrants to Australia.
112. As mentioned above, the Tribunal finds the first applicant is an evangelical Christian male who converted from Shi’a Islam, which is punishable under Iran’s religious laws as it applies to apostates from Islam.
113. Nonetheless, the Tribunal accepts the applicant, as a practising Christian, will have to modify his behaviour to avoid persecution as a voluntary returnee living in the community.
114. It is fundamental to the applicant’s Christian faith to renounce the Prophet, Muhammad, as the divinely inspired founder of Islam and as the last and final messenger of God’s monotheistic revelations as outlined in the Qur’an, the Hadith and the Sunnah, as authoritatively interpreted by the Iran’s ayatollahs. Since the 1979 overthrow of the Shah and the more secular monarchist institutions in Iran, the Iranian constitution elevated the Grand Ayatollah as the most senior cleric of Twelver Shi’a Islam, the Supreme Leader. The constitution of Iran’s Islamic Republic has entrenched strict laws against Muslims converting to Christianity with punishments that include long-term arbitrary detention and lawful executions.
115. As a Christian convert, the first applicant will be compelled to conceal his religious beliefs as he will not be able to demonstrate his religious faith with co-congregants other than participating in underground house churches or to openly practise his faith and religious beliefs or undertaken charitable works which identifies his activities as explicitly Christian. The country information indicates that the laws and practices against house or underground Christians practising in clandestine churches in Iran are draconian, designed to have a chilling or suppressive effect on them gathering and proselytising according to doctrine and practices of the Salvation Army or any similar Protestant denominations.
116. Most converts to house churches in Iran are Protestants (Pentecostals, Presbyterians and Anglicans); other conversions are rare.[6] House churches are perceived as a national security threat by the regime. This is due to their secrecy and perception of the meetings as a potential source of opposition activity and their links to foreign, Western governments.[7] The authorities choose informers to infiltrate house churches, however, house churches restrict numbers and remain mobile (and change locations) in order to prevent being infiltrated.[8] Potential new house church members are typically surveilled by the house church for months.[9] As noted above, the regime targets house church leaders[10] and to a lesser extent, members.[11] The regime has publicly declared its intent to prevent the growth of house churches.[12] The judiciary has handed down long prison sentences in relation to house church activities.[13]
[6] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’ Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.7, CISEDB50AD8640
[7] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.23, CISEDB50A D8640
[8] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.32, 20200414083132; ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 5, CIS7B83941873; ‘Over 450,000 Join Iranian House Church Movement, ‘Great Number of Muslims Turning to Christ’’, Christian Post (United States), 3 March 2016, CX6A26A6E1858; ‘Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 21, CIS28931
[9] Update on the Situation for Christian Converts in Iran: Report from the Danish Immigration Service’s fact-finding mission to Istanbul and Ankara, Turkey and London, United Kingdom’, Danish Immigration Service, 23 June 2014, p. 24, CIS28931
[10] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.32, 20200414083132; ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo -Norwegian Country of Origin Information Centre, 29 November 2017, p.21, CISEDB50A D8641; ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, pp. 7 & 9, CIS7B83941873
[11]‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.32, 20200414083132; ‘Iran: House churches and converts’, Danish Immigration Service and the Danish Refugee Council, February 2018, p. 7, CIS7B83941873
[12] ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.21, CISEDB50A D8641
[13] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.33, 20200414083132
117. There is a lack of due process surrounding the arrest and detention of Christians[14] released, or else held (sometimes without charge) for months.[15] Bail can be paid in the form of cash, a bank guarantee or by mortgaging real estate. It is often used to force the person to keep a low profile and is maintained even if the matter is not followed up with more legal action.[16] Some converts have been released on very high bail, while no formal charges are laid.[17] Converts arrested for the first time are usually released within 24 hours.[18] Interrogations are usually undertaken by agents of the Ministry of Intelligence and Security.[19] There are reports of beatings, solitary confinement and sexual abuse of converts in detention, as well as psychological pressure being placed on them.[20]
[14] IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017–February 2021)’, Immigration and Refugee Board of Canada, 09 March 2021, 20210330090142; ‘The Persecution of Christians in Iran’, The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 1 March 2015, pp. 11–12, CISEC96CF1343
[15] ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 11, CISEC96CF14127; ‘Annual Report 2020 - Rights violations against Christians in Iran’, Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 02 February 2021, p.11, 20210203085117. Recent examples: ‘Two Christians sentenced to 8-year prison in Iran’, Middle East Concern (United Kingdom), 9 January 2018, CXBB8A1DA309; ‘Iran: Christian converts arrested in Dezful’, Iran Human Rights Monitor (United States), 16 October 2017, CXC90406615721; ‘Recently Arrested Christian Convert Couple still Held in Uncertainty’, Mohabat News, 4 October 2017, CXC90406614881; ‘Iranian Christian Prisoners to Go on Hunger Strike’, Mohabat News, 7 February 2017, CXC9040661530; ‘Imprisoned Iranian convert ‘seriously ill’ after hunger strike’, World Watch Monitor, 14 February 2017, CXC9040661793 Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo - Norwegian Country of Origin Information Centre, 27 November 2017, p.25 , CISEDB50A D8640
[16] ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.22 - 23, CISEDB50AD8641
[17] ‘Iran: Christian converts and house churches (1) - prevalence and conditions for religious practise’, Landinfo -Norwegian Country of Origin Information Centre, 27 November 2017, p.25, CISEDB50A D8640
[18] ‘Iran: Christian converts and house churches (2) - arrests and prosecutions’, Landinfo - Norwegian Country of Origin Information Centre, 29 November 2017, p.22–23, CISEDB50AD8641
[19] ‘The Persecution of Christians in Iran’, The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief, 1 March 2015, p.8, CISEC96CF1343
[20] ‘2021 Report on International Religious Freedom: Iran’, US Department of State, 2 June 2022, Sec II, 20220603091924; ‘IRN200458.E - Iran: Situation and treatment of Christians by society and the authorities (2017-February 2021)’, Immigration and Refugee Board of Canada, 09 March 2021, 20210330090142; ‘Annual Report 2020 - Rights violations against Christians in Iran’, Open Doors, Article 18, Middle East Concern, Christian Solidarity Worldwide, 02 February 2021, p.10, 20210203085117; ‘Christian Converts in Iran’, Finnish Immigration Service, 21 August 2015, p. 9, CISEC96CF14127; ‘Saeed Abedini Recounts Torture in Iranian Hospital: ‘They Beat Me in Front of My Mom’’, Gospel Herald (United States), 18 April 2017, CXC9040666164; ‘Iran’s hidden Christians are becoming visible in the migrant camps of Europe’, World Watch Monitor, 15 March 2017, CXC904066384
118. Under such a legal and security environment, the Tribunal accepts the first applicant will be powerfully and compellingly encouraged to modify his behaviour as a conscientious and open Christian, as practised in Australia, to avoid harm. While he is not a proselytising Christian, his modified behaviour will come at the expense of the first applicant who has been able to openly display his Christian convictions through open worship and by seeking out religious instruction and guidance from co-congregants and from those in leadership or experience. It would be unreasonable for the first applicant to take steps to modify his religious behaviour as an outwardly faithful Christian so as to avoid a real chance of persecution in Iran as the modifications would conflict with a characteristic fundamental to their conscience and because it would require the first applicant to alter their religious beliefs or conceal their true religious beliefs, pursuant to s 5J(3).
119. Further, the Tribunal finds that the real chance of persecution relates to all areas of Iran (s.5J(1)(c)).
120. For the reasons given above, the Tribunal is satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) and s 5H(1).
Second applicant: member of the same family unit
121. It is accepted the first applicant is the biological child of the second applicant.
122. Having reached the findings that the first applicant satisfied s.36(2)(a), the Tribunal has considered whether the second applicant is a member of the same family unit as the first applicant.

Section 36(2) provides that the decision maker must be satisfied that the applicant is a non-citizen in Australia and is a member of the same family unit as a person in respect of whom Australia has protection obligations and who holds a protection visa (ss 36(2)(b)[21] and (c)[22]).
[21] Section 36(2)(b) introduced on 1 October 2001 by the Migration Legislation Amendment Act (No 6) 2001 (Cth) (No 131 of 2001) and applicable to visa applications made on or after that date (no transitional arrangements). Amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 (Cth). The amendments to s 36(2)(b) apply to all applications for visas made on or after the commencement of the Part on 1 July 2009 and all applications made before that date but not decided before that date. Section 36(2)(b) is in similar terms to cl 866.221(3)(b) of sch 2 to the Regulations. Both s 36(2)(b)(ii) and cl 866.221(3)(b) require that the visa must already be held by the relevant refugee member of the family at the time the Minister or delegate makes their decision in respect of the family member: MZXPK v MIAC [2008] FMCA 1273 at [39].
[22] Section 36(2)(c) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (No 121 of 2011) and applies to all protection visa applications made on or after 24 March 2012, as well as those made prior to, but not finally determined at that date: Migration Amendment (Complementary Protection) Act 2011 (Cth), s 35. As with s 36(2)(aa), its operation appears limited to visa applications made on or after 1 October 2001 (see above).

124. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12.
125. Regulation 1.03(4)(d)(i-iii) includes a relative of the family head or of a spouse or de facto partner of the family head, who does not have a spouse or de facto partner; and is usually resident in the family head's household; and is dependent on the family head.
126. The term ‘relative’ is defined in reg 1.03 of the Regulations as a ‘close relative’ which includes the spouse or de facto partner of the person; or a child, parent, brother or sister of the person; or a step-child, step-brother or step-sister of the person. ‘A relative’ includes a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew,[23] and in the case of a Subclass 200 (Refugee) visa[24] or a Protection visa, a first or second cousin.[25]
[23] In Acosta v MIBP [2016] FCCA 1276 at [8], the Court held that reg 1.03 does not identify an inclusive non-exhaustive meaning but that it clearly defines the persons who are ‘relatives’ or ‘close relatives’ and it is not possible to consider relations who are not one of the individuals listed as a ‘relative’ or ‘close relative’. The Court accordingly rejected the applicant’s argument that the purpose of the visa should inform who is a ‘close relative’ and ‘relative’ such that a great-aunt could not be considered a ‘relative’.
[24] Note this is not a Part 5 reviewable decision.
[25] Note for applications made prior to 16 December 2014 sub-clause (a) refers to a Protection (Class XA) visa. For applications made on or after that date, and for those applicants who are taken to have made an application for a Temporary Protection (Class XD) visa by operation of reg 2.08F(1)(b); per item 5000, of sch 2, pt 4 No 135, 2014.
127. This relationship is between ‘close relatives’ and is accordingly not excluded by definition under regulation 1.03(4).

Regulation 1.03 provides that ‘dependent’ has the meaning given by reg 1.05A. Regulation 1.05A(2) currently states:
1.05A (1) Subject to subregulation (2), a person (the “first person”) is dependent on another person if:
(2) a person (the first person) is dependent on another person for the purposes of an application for:
(d) a protection visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

129. In relation to certain specified protection and humanitarian visa classes, dependency is not limited to financial support but extends to psychological or physical support where the first person is wholly or substantially reliant on the other person for that support. There is limited judicial consideration of these factors under the current definition of reg 1.05A. However, some guidance may be obtained from case law pertaining to the definition of dependent as it stood prior to 1 November 1999. In particular, in Chakera v Immigration Review Tribunal, the Court found that the Tribunal must not substitute a test of emotional dependency for a test of psychological dependency. In Chakera v Immigration Review Tribunal,44 Heerey J gave the following explanation of what is meant by psychological support:
…. The regulations are not speaking of some kind of clinical phenomena as for example when one speaks of psychological dependency on tobacco. Rather the term is concerned with, to quote one of the meanings given in the Oxford English Dictionary, `the attitude or outlook of an individual or a group on a particular matter or on life in general' or `the mental states and processes of a person' (the Macquarie Dictionary). So understood, `psychological support' directs attention to matters of the mind and spirit as distinct from material support in physical or financial form.
...
There may be some overlap between the concepts of psychological support, in the sense explained above, and emotional support but `emotional' has connotations of `affected or determined by emotion rather than reason' (the Macquarie Dictionary) corresponding to that dictionary's primary meaning of `emotion' as `an affective state of consciousness in which joy, sorrow, fear, hate, or the like is experienced, distinguished from cognitive and volitional states of consciousness'[26]
[26] Chakera v IRT (1993) 42 FCR 525 at 530–531. The Court was considering the definition of ‘aged dependant relative’ in reg 2(1) of the Migration Regulations 1989 (Cth) and the meaning of dependent as defined in reg 2(1), in particular the meaning of ‘financial [and] psychological support’. This was followed in MIMA v Pires (1998) FCR 214 at 223.

130. As mentioned above, the Tribunal has taken into account that the second applicant has continually shared the same accommodation with her son (the first applicant) since their arrival in Australia. It accepts the second applicant has financially relied on the first applicant to a substantial extent and that second applicant has not worked meaningfully to generate her own income due her physical health limitations related to previous [treatments] and [surgery] and her very low levels of educational attainment.
131. There are also the second applicant’s psychological frailties to consider.
132. As mentioned above, the Tribunal received a mental health assessment prepared by [Organisation 1] in relation to the second applicant. The assessment includes a diagnosis of the second applicant with depression and post-traumatic stress disorder, a history of suicide attempts, three of which occurred in Iran and one in Australia, and an admission to [an] Inpatient Psychiatric Unit in 2014. Ongoing symptoms included hypervigilance, panic attacks, excessive ruination, psychomotor agitation, fatigue, suicidal ideation, disrupted sleep, and insomnia. Treatments have included narrative therapy techniques and psychoeducation.
133. The Tribunal accept those frailties are directly linked to the trauma of exile from Iraq as child and the years of uncertainty living as a stateless Faili Kurd in Iran. They have been compounded by losing her husband, her travel between Iran and Australia as an irregular maritime arrival, her isolation in Australia for cultural and linguistic background, and lack of English proficiency.
134. The second applicant provided written and oral evidence that he is his mother’s primary caregiver who takes her medical appointment and acts as her interpreter. He also provided bills and other documentary evidence to support his claim that he financially supports his mother. The second applicant, for all intents and purposes, has relied on the first applicant for shelter, clothing, food and medicine, and upon him for emotional and psychological support for a considerable period, including right up to the time of making this decision. In this regard, the second applicant satisfies r 1.05A(2).
135. It follows from this finding that the Tribunal accepts the second applicant is a dependent relative given she is single (as a widow who has never remarried) and has usually resided with the first applicant since their arrival in Australia, as required by r.1.12(1)(e).
136. Pursuant to subregulations r 1.12 and 1.05A, the Tribunal is satisfied the second applicant is the ‘dependent’ relative of the first applicant as the family head.
137. Accordingly, the Tribunal is satisfied that the second applicant is a member of the same family unit as the first applicant for the purposes of s 36(2(b)(i).
138. As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
Conclusion
139. Fort the reasons given above, the first applicant satisfies the criterion set out in s 36(2)(a).
140. The Tribunal is satisfied that second named applicant is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
141. As noted above, the applicants do not have rights to enter and reside in a third country pursuant to s 36(3).
142. For the reasons given above the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations.
DECISION
143. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Brendan Darcy
Member

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

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

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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