1909062 (Refugee)

[2023] AATA 4824

1909062 (Refugee) [2023] AATA 4824 (6 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Dr Nazir Daawar

CASE NUMBER:  1909062 and 2107439

COUNTRY OF REFERENCE:                   Iran

MEMBER:Melissa McAdam

DATE:6 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal:

remits matter 1909062 (Temporary Protection visa Enterprise visa, application made on 19 February 2016) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act;a.

and

sets aside the decision in matter 2107439 to refuse the applicant a Safe Haven Enterprise visa, application made on 14 October 2020, and substitutes it with a decision that the visa application was not valid.b.   

Statement made on 6 December 2023 at 3:53pm

CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – religion – Christian convert – political opinion – arrested and tortured after anti-government protest – large numbers of arrests and mistreatment of detainees in regime’s crackdowns upon protest activity – Kurdish protestors at significantly increased risk of harm – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 48A, 48B, 65, 91K, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in relation to the review.

3. The applicant claims to be a citizen of Iran.

4. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] November 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

5. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 12 December 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

6. The applicant applied for a Temporary Protection visa on 19 February 2016 (the first visa application). On 1 August 2016 a delegate of the Minister decided to refuse to grant this visa. This decision is subject to review in case number 1909062.

7. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.

8. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 14 October 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.

9. The second visa application was refused by a delegate on 1 June 2021. An application for review of that decision was made on 7 June 2021. This decision is subject to review in case number 2107439. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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.

    Arrival Interview, 8 December 2012

16. The following is a summary of the information the applicant provided during his Arrival Interview with a department officer, recorded on 8 December 2012:

    a.He was born in [year] in Ilam Province, Iran.  He lived in Tehran from 2003 until July 2012.  He is single.

    b.He is of Shia Islam religion and Faili Kurd ethnicity.

    c.His father and stepmother live in Ilam province. His mother is deceased. She died in a car accident when the applicant was about 12 years old.  He has [siblings] who live in Tehran. He has [other siblings] who live in Ilam.

    d.He has a distant relative who lives in Brisbane, Australia.

    e.He performed his compulsory military service between [specified years].  He was in the [named] section. He was an ordinary soldier and did only very basic training such as marching and how to load a gun.

    f.He participated in the 2009 election protests against the government.

    g.He worked as a [Occupation 1] in Tehran.

    h.He left Iran because he feared for his life. In [2012], because of the rate of the US dollar he ran out of work. Then he and others in the union of [Occupation 1]s complained to the Iranian Government. He and about [number] other people in the union of [Occupation 1]s gathered together and were shouting at the government. So they got in trouble.

    i.He was detained by the Basij after the [Occupation 1] protest for about 20 days and mentally tortured.  He started to have trouble with the Sepah and the Basij after this.

    j.He then started making arrangements to leave Iran. He flew to [country] via [another country] in early July 2012, and then came by boat to Australia.

    Protection visa application, 19 February 2016

17. The following is a summary of the additional claims and information the applicant provided in his Protection visa application made on 19 February 2016:

    a.His father is now deceased.  His stepmother and siblings are still in Iran.  He is not in frequent contact with them.

    b.He completed high school in Iran.

    c.He departed Iran legally on his own passport. The smugglers forced him to destroy his passport while he was on the boat.

    d.He left Iran because he feared for his life. Due to the devaluation of the Iranian currency in 2012 he ran out of work. He was a business owner in partnership in Tehran. He was actively involved in a protest in Tehran’s central bazaar. The protest was a reaction to the currency devaluation to express outrage over rising prices and the government's inability and inefficiency to halt the financial crisis. They were part of the Union of [Occupation 1]. About [number] of them gathered together, shouted and expressed their anger.

    e.They clashed with police and other security forces. Some protestors were arrested and others managed to escape. The applicant was detained and tortured for about 20 days. Now he is on the list of Iran Intelligence forces for taking part in that rally.

    f.If he returns to Iran there will be much more serious consequences. On arrival he will be detained, jailed and may be tortured. There could be other serious consequences such as life-time jail or even execution due to his Faili Kurdish background.

    g.He was always denied government employment or permanent employment because of his Kurdish ethnicity. He was always discriminated against in Iran as a Faili Kurd.

    h.The government of Iran has put restrictions on freedom of speech and punishes the opponents, dissidents and civilians by beating, torture, rape, and killing.  There are numerous reports where Iranian authorities have accused dissidents and demonstrators of being "part of a foreign-backed plot", or "propaganda against government" or "plan to destabilize economy" to hand them more serious sentences including the death penalty and long term jail in remote areas.

    i.There are countless reports that show Iran's human rights record has deteriorated, in particular after the election in 2009. People who expressed themselves freely on their Facebook page were taken into custody and tortured to death by Iranian intelligence agents.

    j.He was tortured mentally and physically for about 20 days during his detention by Basij and police forces. Eight people were kept in a small room. They did not receive enough food and were not allowed to contact family or a lawyer.  They were not allowed to sleep and were given mental torture.

    k.He will be arrested on arrival in Iran and detained, tortured and jailed before being handed over for harsher sentencing and punishment.

    Departmental Interview, 24 June 2016

18. The following is a summary of the information provided by the applicant in his Department interview:

    a.The applicant had a genuine passport in Iran in his own name.  He obtained it to leave Iran. The smuggler told him to throw his passport into the ocean.

    b.His mother is Iranian and his father was born in Iraq but became an Iranian citizen. The applicant’s father had an Iraqi Birth Certificate but in his time it was easier to obtain Iranian citizenship.

    c.The applicant has [number] brothers including a stepbrother, and [number] sisters.  They are all in Iran. [Some] of his brothers and [sisters] are in Tehran.

    d.He is of Faili Kurd ethnicity. His mother tongue is Arabic but he can speak Persian as well. The scripts are the same but the pronunciation or accent is different.  People in Iran know the applicant is Kurdish because they will ask where he is from. 

    e.He cannot get public sector work in Iran because he is Faili Kurd.  The education provided was low level.  He applied for public sector jobs but could not get them. Persians could get the jobs easily.  He was told he is Kurdish and was not needed.

    f.He did not study beyond his university preparation course because of discrimination and he did not have enough money.  He saw his Faili Kurd friends with qualifications and they could not get jobs in their qualification so they ended up selling things on the street.

    g.For his military service the applicant served in [named section] at a low level. He would [perform specified tasks].

    h.He participated in the 2009 election protests. He was on the street chanting slogans. There were no consequences for him as a result.

    i.After his military service he went back to his village for a year. Then he went to Tehran and worked as a [Occupation 1]. He wanted a job in the public sector but could not obtain one.  Some of his friends were [Occupation 1]s so he became one too.  He eventually set up a store of his own with a friend. Initially they did well but the economy went bad and his [business] got worse. The Iranian government wasn’t controlling inflation so each day the value of his stock would decrease.

    j.The applicant joined the [Occupation 1] union just before he opened his own business.  His friends had joined or linked him to the union on his behalf.  It helped give him networking opportunities as he established himself as an accredited and skilled [Occupation 1]. The union did not do much else, it did not have meetings.  It did arrange a pilgrimage for its members each year but the applicant was not interested in this.

    k.He left Iran because he talked to a lot of people to tell them they should defend their rights against the government. The bad economic policies of the government motivated the applicant to talk to others about how these were harming them and they should defend their rights.  He wanted to talk to the government about their poor management and ask why they were not supporting their own people and producers instead of helping other countries such as Lebanon and Palestine.

    l.The [Occupation 1] demonstration was in [month] 2012. He was detained for 20 days. The protest was against the bad economic policies of the government. The protest didn’t last more than 30 minutes. The security forces came and arrested people. Some of the people arrested disappeared. He doesn’t know what happened to some of them.  His family in Iran have told the applicant that they have not heard from a few of the demonstrators.

    m.The police took them and pushed them into a van. They were blindfolded and driven to a place. They were taken out of the van and punched really hard. They were pushed into an underground floor. There were about 10 of them. They were all pushed into a cell of about 3 by 4 metres. It was dark and really dirty. It had a toilet in the corner.  No one came to talk to them or ask them questions while they were there.

    n.After 20 days some of the people had been released.  Somehow his family became aware that the applicant was there and they contacted people to get the applicant released on bail. He was told he had to go to court in three or four months’ time. He does not know what he was accused of.  They did not tell him. They made him sign a piece of paper.  It may have been ‘disturbing the peace’ or ‘disturbing the economy’ or’ being a foreign agent’, it depends on the judge. As a Kurd he would be punished harshly. He was told he would receive a letter but he didn’t receive a letter because he left the country.

    o.He decided to leave Iran because he and his friends were scared of what would happen in court.

    p.He thinks he is on a watch list because he did not go to the court. He will face life imprisonment and execution if he returns to Iran.  He was the person who helped arrange the demonstration.

    q.Iranian government policies haven’t changed so he will still be at risk even though some years have passed.  Anyone who believes in freedom of speech is ‘disappeared’.

    r.He and his family would have to go long distances to get medical treatment in Iran. If they had better medical access his father may still be alive.

    Delegate’s Decision

19. The Delegate accepted the applicant is Faili Kurd; that he had low-level participation in the 2009 election protests; and that he was a member of the [Occupation 1]s Union.

20. The Delegate did not accept that the applicant had participated in a protest about the economic conditions in [2012] or that he was subsequently detained.

21. The Delegate was not satisfied that the applicant had a well-founded fear of persecution in Iran or that he was owed complementary protection.

    Second Protection Visa application, 14 October 2020

22. Although this was not a valid application, the applicant provided additional information in his second visa application and the ensuing review application which is relevant to his claims for protection. This information is before the Tribunal and is set out as follows.

23. In his visa application form he provided the following additional information:

    -He has converted to Christianity in Australia.

    -He was born Shia Muslim but did not accept Islam. He was forced to pray and fast by his father. He would be punished if he disobeyed. As an adult he has never accepted Islam.

    -When he arrived in Australia he was introduced to Christianity and found it to be a religion of love, peace and humanity. He converted to Christianity and was baptised in [Church 1] on 14 July 2013.

    -He has experienced extensive and systematic discrimination in Iran because of his ethnicity.  He was detained by the Basij and Sepah after the [Occupation 1] protest. He was subjected to verbal and physical abuse and mental and physical torture. After his release from detention he was continuously troubled by the authorities so decided to flee Iran.

    -In Australia an Iranian pastor visited his home. He taught the bible and explained Christianity to the applicant and his house mates. The applicant became attracted to Christianity. He was invited to the church and decided to choose Christianity.

    -He fears returning to Iran for the previous reason he stated and also because of his conversion to Christianity.  Under Sharia laws conversion from Islam is punishable by execution.

    -He has told his family that he has converted to Christianity.  One of his sister’s husband is very religious and connected to the Basij and Sepah.  He called the applicant and verbally abused him and threatened to kill him.  He also threatened to inform the authorities about the applicant’s conversion.

    -He believes he will be arrested on arrival in Iran.  He believes the authorities know about his conversion and he will be punished by death or seriously harmed.

1. He submitted copies of the following documents:

   -A Certificate of Baptism dated 14 July 2013.

   -His Iranian Birth Certificate (with English translation).

   -His Iranian Military service discharge card (with English translation).

   -His Iranian Driver’s Licence (with English translation).

   -His Iranian National ID Card. (with English translation).

   Departmental Interview, 12 May 2021

2. The following is a summary of the information provided by the applicant in his Department interview on 12 May 2021:

   a.The applicant obtained his passport [shortly] before he left Iran. The smuggler told the applicant to throw the passport into the sea.

   b.In Iran he faced discrimination as a Kurd.  He was not able to get jobs in Iran so he had to learn a trade.  He applied for many government jobs and company jobs but did not get them.

   c.The applicant lives in Sydney. He used to smoke but has quit. He does not drink alcohol because he exercises. He may take some wine sometimes if his fitness instructor advises him to.  His friends drink. He does not have a girlfriend.

   d.He did not vote in the 2009 elections in Iran. He joined in protests about the election because he could see that the votes of his friends had been stolen. He joined one or two of the protests while he was working in the bazaar.

   e.The applicant participated in the [Occupation 1] protest in the Grand Bazaar of Tehran. He helped organise the protest.  He spoke with other friends that they had to talk about their rights to the government.  The government economic policies and international policies were not acceptable.  He encouraged others to have the demonstration.

   f.About [number] people attended the protest. [Occupation 1]s organised it and the applicant was one of them.  The applicant would talk to people in person that the government was not supporting them economically and they had to protest. It was a complaint against the economic situation, not about politics. But the government considered it political.  It took about 20 days to organise the protest.

   g.The demonstration was at about 10 in the morning. After just half an hour the security rushed them and arrested them.

   h.He was a member of the [Occupation 1] union but it was just a name, they didn’t do anything. The applicant joined them to be able to work in the bazaar. The union did not organise the protest. 

   i.On the day of the protest they said slogans and had flags on which it was written why is the government not supporting them and why are they importing [products] from China.  The [Occupation 1]s got together and paid money for the flags to be made.  The applicant was in the first row of the protest.  Many security arrived in coaches. They punched and kicked the protestors, pushed the protestors into a van, blindfolded them and took them somewhere.

   j.When he was released he had to sign a letter and was told he had to go to court in 3 or 4 months. They were blindfolded again and taken somewhere else so he does not know where they were detained.

   k.Before his court date he left the country. He thinks his family received documents for him to go to court.

   l.He has not been involved in anti-Iranian government activities in Australia.

   m.There are no reports of the [Occupation 1] protest because many things happen in Iran which are not reported.

   n.The applicant decided to convert to Christianity in 2013. The delegate put to the applicant that he had not mentioned converting to Christianity in his 2016 TPV application. The applicant responded that he said in the camp he was a Shia Muslim. When he told his lawyer this the lawyer told him not to mention his conversion as it would be seen negatively.

   o.The applicant’s church is [Church 1] with Pastor [A]. He goes there usually on Sundays, almost every Sunday for the past seven years.  He drives there in his own car.  He has letters of support from Pastor [A] he will submit to the delegate.

   p.[Church 1] is far from the applicant’s [home] but he goes there because it has a Persian interpreter.  The applicant does not know the names of the Iranian Assistant Pastors at the church. [Mr B] comes and interprets.  There was a [Mr C] who went to Canberra. The applicant asked about him about 2 or 3 months ago. He doesn’t know when [Mr C] went to Canberra.

   q.He decided to convert to Christianity because he was not a real Muslim, it was forced upon him. In Australia some people evangelised and preached to him and he researched and converted.  He would study on youtube and google. Christianity is kindness and love and Islam is aggression and violence.  As a Christian the applicant has become kinder to people.

   r.For Baptism he goes into the water in Jesus’ name and comes out alive again.

   s.Since he become Christian he has the hope there is someone who listens to his prayers and that he will go to heaven. 

   t.The applicant prays. He talks to his friends about Christianity. He has become very kind and it has affected his life deeply. He has evangelised some people and converted two of his friends.  He has evangelised publicly in shopping centres. He talks to people about Jesus and shares his experiences. The last time he did this with [Church 1] was two weeks ago.  He does so regularly.  Pastor [A] will confirm this.

   u.He respects Muslims and the Prophet Mohamed but he doesn’t have much to do with them. The delegate put to the applicant that [Church 1] has some strict teachings such as being very strong against homosexuality. The delegate asked the applicant what Pastor [A] says about Prophet Mohamed and the Quran, and put to the applicant that Pastor [A] says the Prophet Mohamed is the anti-Christ and that Islam is evil and must be destroyed. The applicant responded that he studied in general about Christianity. He hates Islam and doesn’t want to talk about it.  He speaks to his family who are Muslims and wishes they would become Christian.

   Information to the Tribunal

   Tribunal Hearing

3. The applicant appeared before the Tribunal on 31 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.All of the applicant’s family are still in Iran.  His parents are deceased.  [Some siblings] are in Tehran. [Other] brothers and [sisters] are in Ilam.

   b.His brothers are currently working.  The eldest is close to retirement age and works in [a specified] company in Tehran.  One brother in Ilam is a [occupation] and other brother is studying and helping his brother.  They are able to support themselves and their families but the applicant also helps them sometimes.  The applicant works as a [occupation] in Australia.

   c.When he was in Tehran he lived on his own close to the bazaar.

   d.The applicant worked with his partner in their shop. He would go and talk to the other [Occupation 1]s to encourage them to come to take care of their rights.  The applicant talked to some guys and other guys talked to others. After that they just agreed to go to the vicinity of the bazaar where people were and to recite their slogans.  The protest was planned in advance. They all knew there would be a protest happening.

   e.The protest was held in the Grand Bazaar, in Sabze Square. There were about [number Occupation 1] in the protest. They chanted peaceful slogans for their rights and for the government to hear their words. They complained about the bad policy of the government. In less than half an hour the police came.

   f.The applicant’s partner was at the shop. He didn’t go to the protest. He had family and was scared he would be imprisoned or arrested by police.

   g.There had been protests in the bazaar previously but not much.

   h.The area was always busy so there were a lot of people around when the [Occupation 1]s were protesting.  They watched and if it had continued they may have contributed to it.  They were positive about it.  

   i.The police who came were in civil attire. They belonged to the Sepah and the Basij.  About ten people were arrested.

   j.The applicant and the others arrested were put in vans and driven to a place. They were taken to a basement downstairs.  The applicant was kept there about 20 days.

   k.The Sepah treated them inhumanely. They would run water under them at night and beat them with pipes and say it was end of the line and they would never see their families.  There was one toilet in the room. The room was about 3x4 metres with about ten people held in it.  They slept on the floor.

   l.The applicant was released after approximately 20 days. He was given a letter to sign to attend court after three or four months.

   m.On the day of his release he went to the home of his friend who was his business partner. His partner gave the applicant information about people who were able to escape during the protest. Some of the other [Occupation 1] who were arrested have disappeared and some are in prison.  He doesn’t know if any of them are in prison he just suspects this based upon what his family tells him.

   n.The applicant then returned to Ilam.  About one month after his release the applicant left Iran.

   o.When he first came to Australia the applicant maintained contact with his business partner to some degree but this has since ceased because they had disagreements over some matters.

   p.The Tribunal put to the applicant that his family were in Ilam so how would they know what happened to the [Occupation 1] in Tehran. The applicant responded that most of the [Occupation 1] there were originally from the same city as his family.

   q.The applicant is not aware of any reports in Persian about the [Occupation 1] protest in 2012.

   r.The applicant has participated in protests in Australia.  The protests were because of what had happened to Mahsa Amini in Iran.  He has attended three or four protests in Sydney city. Two were at Town Hall and two were in Belmore Park.  While he was there he made some videos. He can submit these to the Tribunal.

   s.The applicant participated in the protests in Sydney because they were about how the Iranian regime is treating people. They are about human rights, general freedom and freedom of speech.  He was there to support the basic rights of Iranian people and highlight how people in Iran are unable to speak about what they believe in. These things convinced the applicant to go to the protests.  He wants to be of help to the future of Iran.

   t.If he was in Iran he would definitely join the protests there too.  He would do this because he would like the Iranian government and everybody in the world to hear what he is saying.  He supports freedom of speech.  He would like to be free for himself and for others.  The Iranian government causes problems everywhere, in Syria, Yemen, Iraq and Palestine. The applicant grew up in Ilam. He and his family are citizens of Iran but their human rights are being spoiled by the government.

   u.The applicant’s siblings are not involved in protests in Iran. This is because their situation is different from the applicant’s.  For example his brother has a wife and his sister is married, whereas the applicant can decide for himself freely.  The applicant has heard that some of his nephews have participated in the protests. The son of his [sister] has protested in Tehran.

   v.The applicant does not use social media much.  He uses Instagram a little.

   w.The applicant is a protestant Christian. He attends [Church 1].  He has done so since he came to Australia in 2013, usually on Sundays. He has no role in the church, he just attends as a believer.

   x.In Iran he never liked Islam. He was forced to pray there. He wanted to know more about other religions.  There were some churches in Iran but it was not possible to attend them.

   y.He did not see anything but fighting and discrimination in Islam.  Christianity is the only religion where kindness is the basis. In school they would teach the students the Quran and it was about wars and being harsh and fighting. In most verses it talks about wars and blood shedding and hitting women and all these things.  He did not see any stories about kindness in the Quran.  Women and men are not equal. In the bible they are equal.

   z.In the detention camp in Australia he would attend bible studies.  In Sydney [Mr D] talked to the applicant and others and invited them to church where the applicant was baptised.  This was on 14 July 2013.  The applicant was baptised because it is a ceremony to believe in Christianity.  It is the day you become free from your sins and start a new life. He goes into the water and comes out, which signifies going in with sins and coming out without sin.

   aa.He did not mention his baptism in his initial application because his former representative, Seyed Abadi, advised him not to mix it with his case.  The Tribunal asked if he was fearful at the time about being Christian in Iran. The applicant responded everyone in his family in Iran knows.

   bb.The applicant reads a Persian version of the bible.  He likes the bible.  The Tribunal asked the applicant if there was anything in the bible he did not understand or had questions about.  The applicant responded of course there are matters he doesn’t understand. When he goes to church he discusses it with the pastor and the other guys.  For example there is a story about a farmer sowing seeds. The applicant was unable to understand what it meant but he went to church and it was explained to him.  The purpose of the story is about belief and believers.  It corresponds to every level or degree of belief.  A farmer sowed some seeds. Some of the seeds were out of the farm area and the birds were taking them, and some seeds were spread on stones.  The seed which fell on stone grow very fast but the roots did not grow so they died very soon. Some other seeds mixed with weeds and grew together and the weeds took the energy out of the roots. Some other seeds fell in the right places and grew very nicely with yields of more seeds. Jesus told his followers that seeds on the pathway get the best sun but Satan comes and steals those seeds.  With seeds on stone, a person gets god’s words but loses belief very soon.  For seeds with weeds, a person listens to god but is more interested in the world so love of the world stops them from being a true believer.

   cc.The applicant last attended church two weeks ago.  He went to bible study class. It was about the foretelling of Jesus and Ilam which is today’s Iran.  The church service was in the morning but he didn’t attend it. He last attended a church service about one month ago. He normally just goes to the afternoon bible study class.

   dd.At the last church service he attended they prayed and talked about the verses. The Pastor talked about the message of the day.  It was about Christianity and the power of Jesus and the last supper.  There were some matters the applicant doesn’t remember.  At the last supper Jesus asked his followers to go to that city and tell that person to make a special dinner for them. They went and dinner was prepared. Jesus told them one of you will betray me tonight.

   ee.The applicant has attended most bible study sessions almost every Sunday for the past ten years. He also studies the bible at home.  He does not know a lot about the bible.  He has not read it all.  He has only read the book of Matthew. There are other parts of the bible but he is not familiar with them. There is no interpreter at bible studies sometimes.  He attends the church because his beliefs become stronger and to see his friends who are also Iranian and speak Persian. None of them understand when there is no interpreter.

   ff.He knows the bible gospels have a lot in common such as the birth of Jesus.

   gg.The applicant believes religion will save him.  Today he prayed to Jesus to touch the heart of his family. He always feels Christianity in his body so he is always hopeful in life.  He has found a lot of friends.  He helps people and doesn’t lie.

   hh.Jesus is God who appeared among people to save them from their sins. The applicant believes this.  He was never interested in the teachings of the Prophet Mohamed because he was forced to pray.

   ii.The Tribunal put to the applicant that country information indicated religion was considered a private affair in Iran.  The applicant responded there is no freedom of speech in Iran.

   jj.The applicant informed his family of his conversion and his [cousin] and [his brother-in-law] say it is their duty to kill the applicant.  [His brother-in-law] said he will report the applicant’s conversion to the authorities.

   kk.The applicant is blacklisted in Iran because of his first matter, the [Occupation 1] protest. He was a leader and someone would have mentioned this.

   Post-Hearing Submission

4. On 8 November 2023 the applicant submitted several mobile phone video clips of protests against the Iranian regime held at Sydney Town Hall and in Belmore Park.

   Country Information

   DFAT

5. DFAT’s most recent ‘Country Information Report on Iran, published on 24 July 2023, contains the following:

   Kurds

   Ethnic Kurds are predominantly Sunni Muslim and most Iranians are Shi’a Muslim. Some linguistic and cultural diversity exists between different Kurdish groups. Kurds mostly live in the north-western provinces of Kurdistan, Kermanshah, Ilam and West Azerbaijan, including in areas that border Kurdish areas of Iraq and Turkey. Kurdish separatist groups have demanded a separate Kurdish state for some decades. Kurdish-majority areas tend to be relatively underdeveloped. High levels of unemployment have forced many Kurds to undertake smuggling work between Iran and Iraq. The work is dangerous, the terrain is mountainous, smugglers are subject to arrest, and the area is mined.

   Various groups are involved in armed separatist insurgency. Groups including the Democratic Party of Iranian Kurdistan, Kurdistan Free Life Party (KFLP), Komala and Kurdistan Freedom Party. Although all groups fight for a separate Kurdistan, their activities can be diverse. For example, some fight in Iraq or were involved in the fight against Islamic State. Other groups have no such affiliation but may be separately recognised as terrorist groups, including the KFLP which is designated by the United States (but not by Australia) as a terrorist group. Some groups that advocate for Kurdish separatism are non-violent. In-country sources told DFAT most Kurds accept that a separate Kurdish state within Iran is not a realistic goal and that most Kurds are not involved in armed separatism.

   Some Kurdish groups complain they are unable to express their ethnic identity. This includes an inability to use the Kurdish language in schools, inability (or unwillingness) of officials to register births officially and restrictions on Kurdish language media. Arbitrary arrest, enforced disappearance and unfair trials, including those that have resulted in the death penalty, have also been alleged. According to the UN Special Rapporteur on Human Rights in Iran, Javaid Rehman’s January 2022 report, close to 500 Kurds, including teachers, border couriers, artists, and human rights and environmental activists were arrested and detained between January and October 2021. At least 140 were charged with national security-related crimes. Over 50 Kurds were executed, and 11 died in unclear circumstances in prison in 2021, according to the same report.

   The death of Mahsa Amini, a 22-year old from Kurdistan Province, sparked nation-wide protests in September 2022. The protests in Kurdistan were the most intense and raised issues of Kurdish nationalism and the government’s treatment of minorities.

   While DFAT assesses there is enough evidence to conclude a pattern of arbitrary arrest, detention and/or killing of Kurds, many Kurdish fighters are involved in an armed insurgency and terrorism and thus individual circumstances of each case can be difficult to assess. DFAT assesses that Kurds face a high risk of official discrimination and violence, however that may also be because they perpetrators of violence. Those not involved in insurgent activity are far less likely to come to the attention of authorities, however the arrest and detention of innocent people is a low risk. Because Kurds tend to live in Kurdish areas, DFAT assesses the risk of societal discrimination is low.
   …

   Christians

   There are a small number of recognised Christians in Iran: 117,700 according to government figures quoted in the US Department of State’s 2021 Religious Freedom Report, and up to a million according to Christian groups. The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers.

   Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.

   The activities of recognised Christian communities are closely regulated, to guard against proselytisation. Recognised Christian groups refuse to proselytise as a result, and in-country sources told DFAT this resolve is tested regularly by authorities. 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 (they must be performed in the traditional language of the Church and not the vernacular) and perform regular identity checks on worshippers to confirm that non‑Christians or converts do not participate in services. Churches that do not comply face closure.

   Community leaders associated with registered churches report authorities respect their religious rights, and their communities can 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). However, in-country sources report that the government restricts their community members from senior management roles in public and private organisations due to an Iranian law that prohibits non-Muslims from holding positions of authority over Muslims. This means that the heads of Christian schools Shi'a Muslims appointed by the government.

   Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.

   House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi‑regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.

   Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.

   Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of Karaj, near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.

   In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.

   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 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. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT 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. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.

   …

   Protests

   Protests are relatively common in Iran and can be violent. Up until September 2022, protests were largely driven by economic issues – low-income earners and working-class people demonstrating against cost-of-living pressures. Most protest action in recent years, including those driven by economic factors, has had an anti-government and anti-regime theme. Sources suggested environmental protests, including protests over water supply issues, also provoke a strong reaction from the regime. Protests can be met with lethal force.

   Mahsa Amini Protests

   On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.

   The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. The response by security forces has been particularly harsh in majority Kurdish and Baluch regions.

   While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.

   While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.

   Protests prior to September 2022

   In late December 2017, a small protest in Mashhad (Razavi Khorasan Province) rapidly escalated and by 2018 had spread to more than 50 other cities and towns across Iran, involving an estimated 40,000 protesters. The protests spanned ethnic and religious lines and focused on economic hardship with anti-government and anti-regime themes. Many protesters conducted themselves peacefully, however there were reports of violence. According to Human Rights Watch, 4,900 people were arrested during the protests, and at least 21 people were killed, including members of the security forces. A large number of protesters (DFAT is not aware of how many) were released soon after arrest however DFAT understands some were given long prison sentences. DFAT is not aware of continued arrests in relation to these specific protests, however assesses that leaders of the protests who have not yet been arrested, if any, could still face arrest.

   Further protests occurred in November 2019 after petrol subsidies were reduced. According to international media reporting, the protests spread to dozens of cities and towns across Iran and about 1,500 people were killed. According to then-UN High Commissioner for Human Rights, Michelle Bachelet, 7,000 people were arrested. As with the 2017 protest, DFAT understands most people arrested were subsequently released.

   Protests again occurred in January 2020 after Iran admitted it had mistakenly shot down a Ukrainian civilian airliner. The plane crashed with 176 people on board, most of whom were Iranian and all of whom died. Protesters demanded the resignation of the Supreme Leader over the incident and subsequent cover-up. Online footage appeared to show security forces using tear gas, rubber bullets and live ammunition to disperse protesters in Tehran. Dozens of arrests were reported. DFAT is not aware of ongoing arrests.

   Smaller protests continued to occur in 2021 and 2022. Most such protests (prior to those in response to Mahsa Amini’s death) were in response to water and electricity shortages, cost of living pressures and rampant inflation. At times, authorities tolerated the protests, however on other occasions they have violently supressed protest activity. These protests began in Khuzestan in July 2021 and have continued for many months. New protests can occur at any time over different issues and may be seen as a continuation of existing protests. For example, mass anti-government protests occurred in May 2022 in Khuzestan after a building collapsed, killing dozens. The situation is volatile, and arrests and fatalities are possible. Most protests comprise several hundred people. Independent sources of information are not always available and what does exist is difficult to verify.

   DFAT assesses that economic hardship was the primary driver of most protests from 2017 to 2022. In the current climate, DFAT assesses that ordinary protesters face a moderate risk of arrest and official violence but a low risk of on-going official harassment and discrimination.

   ‘Green Movement’ Activists        

   Iranian authorities cracked down on the protest movement known as the Green Movement in 2009 to 2010. The protests were about the election of Mahmoud Ahmadinejad as President. The movement was violently suppressed by authorities. Some high-profile participants went into exile and continued to promote anti-regime political views, but the movement did not last beyond 2010.

   The Green Movement has little or no profile in Iran today. Neither the movement nor its supporter base played a significant role in the 2017-2022 protests, even if the tactics, demands and government responses may be similar. Local sources told DFAT ordinary participants in the Green Movement are not of interest to the authorities. There have been extensive protests since the Green Movement and authorities are more likely to be interested in those protest movements than historic examples. Continued monitoring of high-profile participants or their families is possible. Those who acquired criminal records because of their involvement in the Green Movement may face discrimination when applying for government employment, particularly if they played prominent, high-profile roles in the movement. DFAT assesses that ordinary participants who avoided arrest face a low risk of official discrimination. DFAT is unable to confirm whether those who fled the country will face harassment or discrimination upon their return.

   …

   Judiciary

   The constitution establishes an independent judiciary. In practice, the head of the judiciary is appointed by the Supreme Leader and the judiciary leadership is under control of conservative hardliners. The Chief Justice must be a cleric and specialist in Shi’a law (a mujtahid). The Courts follow the Civil Law system (similar to Europe, however unlike Australia’s adversarial Common Law system). The Supreme Court is the highest court and under it are civil, family, criminal and military courts. Among criminal courts are first- and second-class courts; the latter have three judges and the former a single judge.

   Revolutionary Courts have jurisdiction over national security matters, terrorism, and offences of insulting the Supreme Leader and drug smuggling and other such crimes. According to the 2021 US Department of State Human Rights Report, most important political cases are referred to a small number of branches of the revolutionary courts, whose judges often have negligible legal training and are not independent. NGOs report revolutionary courts of first instance have issued at least 12 protest-related death sentences, with expected legal protections lacking. For example, Majid Reza Rahnavard was found guilty of enmity against God for the alleged killing of two security officers. He was executed in December 2022 just 13 days after his trial began and just 23 days after his arrest.

   Human rights observers criticise the judiciary for its lack of independence and denial of due process to detainees, and for the failure of trials to meet international standards of fairness. Freedom House in its Freedom in the World 2022 report claims political dissidents and human rights and labour rights activists face ‘arbitrary judgements’ and that the ‘security apparatus’ influence over courts has grown in recent years’. UN Special Rapporteur Rehman in his January 2022 report described the judiciary as ‘a repressive organ instead of an independent body towards which individuals can seek recourse’. The 2021 US Department of State Human Rights Report cites human rights activists who claim verdicts are decided in advance and that defendants frequently do not have an opportunity to appeal significant penalties or consult lawyers.

   Access to lawyers is not guaranteed. Defendants, including political defendants may be given access to a lawyer appointed by the state or may have no access to a lawyer at all. Lawyers themselves, especially those who defend political prisoners, are often arrested or detained, which may reduce the number of people willing to defend those who are facing political charges.

   Bribery of judges occurs, and rich Iranians and/or Iranians with political connections can influence judicial outcomes. The authorities have attempted to clamp down on judicial corruption, and there have been cases of judges suspected of corruption being dismissed and/or prosecuted (including five judges dismissed for alleged corruption on 13 October 2019). Corruption remains widespread.

   …

   Detention and Prison

   Prison conditions are widely considered to be poor. In his February 2023 report on the situation of human reports in Iran, UN Special Rapporteur Rehman described conditions in one solitary cell as ‘inhumane’. He noted severe overcrowding, ill-treatment of prisoners including prison guards assaulting prisoners, long periods of solitary confinement that amount to torture and a lack of healthcare (including routine medical care and specialist care during the COVID-19 pandemic).

   The US Department of State’s 2021 Human Rights Report called prison conditions ‘harsh and life threatening’ with food shortages, ‘gross overcrowding’, inadequate sanitary conditions and lack of medical care. The report quotes human rights organisations that note a lack of medical care (sometimes as a form of punishment), contaminated food and water, water shortages, rodent and insect infestations, shortage of bedding, ‘intolerable heat’ and poor ventilation.

   Political prisoners by law should experience better conditions; for example, they do not have to wear prison uniforms, should not be held in solitary confinement unless a judge deems it necessary, and should have better access to the outside world through communication with friends and family, and access to newspapers, radio and television. In practice, this does not occur. DFAT understands political prisoners are at a greater risk of torture than are other prisoners, and in many cases have not been held separately from other prisoners, meaning that the conditions described above apply equally to political prisoners.

   Kurds

1. According to the 2022 US DOS Country Reports on Human Rights Practices for Iran, published in March 2023, cultural and political activities among Kurds are restricted by the Iranian authorities.  Kurds face discrimination in gaining access to university studies, employment, business licences and economic aid, getting permission to publish books and exercising their civil and political rights. Generally, Iran does not target Kurds specifically because of their ethnicity or religion.[1]

   [1] See also Human Rights Watch World Report 2023, p.312, 12 January 2023.

2. Authorities have reportedly used excessive force against Kurdish people during political protests, including in the Mahsa Amini protest movement that began in late 2022.  The authorities were observed to deploy military-style weaponry against protestors in Kurdish regions which were not used in Tehran.[2]

   2012 Economic Protests

   [2]  Freedom House, 'Freedom in the World 2023 - Iran', 9 March 2023; Radio Free Europe / Radio Liberty (RFE/RL), ‘Iran's Kurdish Region Becomes Epicenter of Protests, Deadly Government Crackdown’, 13 October 2022.

3. There are numerous reports available about economic protests in Tehran’s Grand Bazaar in early October 2012 which for a few days resulted in the closure of the bazaar.   For example The Washington Post reported:

   Tensions over the plunging value of Iran’s currency sparked clashes between protesters and security forces in the capital Wednesday, the most significant unrest there in two years and a possible prelude to a more serious threat to political stability.

   …

   Protesters, apparently including many shop owners, clashed with riot police Wednesday in the area around Tehran’s foreign-exchange markets in what experts described as the most significant Iranian protests since the popular uprising in 2010.
   Police deployed tear gas to disperse crowds and closed off neighboring streets, and in an apparent bid to prevent any spread of unrest, the government deployed satellite jamming to block TV networks, including the BBC, from airing in the country.
   The clashes came a day after Iranian President Mahmoud Ahmadinejad acknowledged that Western sanctions were exacerbating the country’s economic problems and urged Iranians not to exchange their rials for foreign currencies, saying that doing so would further the “hidden war” against the country.
   

   [3] Washington Post, 2012, Tensions over Iran’s currency spark clashes between protesters, security forces’, 3 October

   U.S. officials said the Iranian currency crisis reflected the combined consequences of fiscal mismanagement by the country’s government and economic sanctions imposed to force Iran to negotiate over its nuclear program. The value of the rial has fallen roughly 60 percent over the past year but about 30 percent over the past three weeks.[3]

4. An article in Time Magazine states:

   The Grand Bazaar of Tehran was in limbo on Wednesday as the merchants who make it the “beating heart” of Iran’s economy — as it is popularly described — shouted “Allahu akbar” (God is great) and shut down their shops. The trigger was the collapse of the Iranian rial, which lost more than 30% of its value and fell to nearly 40,000 to the U.S. dollar on the open market. As that happened, text messages of unknown origin went viral asking business owners to temporarily shut down their shops all over Tehran to protest the government’s mismanagement and indifference to the currency crisis.

   The day before, President Mahmoud Ahmadinejad had tried to absolve his government by defending its policies and blaming the situation on his opponents within the regime. He said he believes they have orchestrated a “psychological war” to discredit him. In a televised press conference on Tuesday, he also appealed to merchants and citizens to have patience and wait for the currency market to calm down.

   Ignoring the President’s appeal, thousands of businessmen and shoppers went chanting into the streets of central Tehran, asking the government to “let go of Syria” — a reference to the regime’s backing of Damascus — and to “think of the Iranian people instead.” Many others shouted “Ahmadi[nejad], be careful: we are people, not some fools.” Riot police cracked down on protesters using tear gas and batons, hitting and arresting demonstrators who had taken to breaking shop windows and setting garbage cans on fire.

   According to the Iranian Labor News Agency, which is close to the reformist faction of the government, the merchants’ strike spread on Thursday to the jewelers’ bazaar in Isfahan, one of Iran’s most important economic poles. Tehran’s Grand Bazaar remained shut, the shopkeepers dramatically protesting in silence inside their stores. “After Wednesday’s physical confrontations with the police, we have decided to give the government the silent treatment,” says Nasser, who works in the carpet market. “We have stopped all transactions and are sitting in half-closed shops with dimmed light. I think this is a very effective method to paralyze the ill economy and make the government think of a real solution.”

   The demonstrations marked the first major protest against the Iranian government since the unrest that followed the 2009 presidential election. The suppression of that so-called Green Revolution — the color associated with the opposition to Ahmadinejad — led to the imprisonment of hundreds of journalists and political activists. Dissent seemed to have been cowed — until Wednesday.

   “I am not afraid anymore. What else can [the government] do to me when I am officially going bankrupt,” says Akbar, a very upset textile-shop owner in the Grand Bazaar, while walking among protesters. “It’s a miracle that our businesses have survived under so much pressure and uncertainty. But believe me, enough is enough.”

   The situation is the same for many other merchants. Importers have faced many difficulties getting products into the country; and local producers are facing a shortage of raw material. Even supermarket owners cannot stock their shelves with staples like low-fat milk and garbage bags. “I blame the government of Iran for insisting on the continuation of its useless nuclear program,” says Masoud, the owner of a small grocery shop on the corner of Ferdowsi Street, where the clashes ended in physical violence. “We don’t need nuclear power at the cost of losing our business and livelihood. Can I feed my children nuclear power? Why is the welfare of people the last thing the government thinks about?”[4]

   2022-2023 Protests

   [4] Time Magazine, 2012 ‘The Revolt of the Bazaar: Will Angry Merchants Change Iran?”, 4 October.

5. A November 2022 Minority Rights Group International report, ‘Protests, discrimination and the future of minorities in Iran’, states:

   On 16 September 2022, 22-year-old Kurdish woman Jina Amini – also known by her government registered name Mahsa Amini – died in custody after she was arrested and
   detained by Iran’s morality police. The reason given for her detention was that she apparently revealed some of her hair in public. Jina’s death sparked a major social movement, over the course of which thousands of Iranians across the country have taken to the streets to demand their rights.

   The short and long-term consequences for Iran and the Islamic Republic of these demonstrations are yet to be seen. At the time of writing, the nationwide protests have
   entered their fourth week. Women have been at the forefront of the demonstrations from the very beginning.  Despite the internet blackouts enforced by the state, daily footage of female protesters standing up to the brutality of security forces has inspired millions of people across the world to stand in solidarity with them. Although women have always been active in Iran’s protests over the last five decades, this level of feminist mobilization and participation in leading the protests is unprecedented in Iran.

   A Kurdish phrase was chanted at Jina’s funeral, ‘Jin, Jiyan, Azadi’, meaning ‘women, life, freedom’. These words, already central to Kurdish grassroots movements for many years, have reverberated across the country, becoming the main slogan of the nationwide protests taking place at the time of writing. As this slogan points out, women are more than participants in the movement. The protesters perceive the systematic discrimination against women to be the main barrier to their freedom. Iranian civil society is advocating for emancipation of women, which will not be obtained until women are free from the ideological control of the state. e message of Iranian protesters is powerful and has resonated around the globe in an unprecedented way.  Around the world women have been cutting their hair and chanting ‘Women, Life, Freedom’, in solidarity with the women in Iran who are doing the same. Some commentators have dubbed this the first feminist revolution in Iranian history.

   Jina was not only a young woman; she was also Kurdish and a Sunni Muslim. In three intersecting aspects of her identity, Jina was subject to state discrimination. Her tragic death garnered nationwide solidarity among various Iranian ethnic communities. The common grievances which were represented by the death of Jina have seemingly united communities against the governing Islamic Republic. Kurdish, Baluch, Gilaki, Fars and Arab communities are all chanting ‘Women, Life, Freedom’.

   From the beginning of the uprising, the state has used violent methods to suppress activism and reinstate ‘order’. At the time of writing, over 240 people have been killed by the security forces in the current demonstrations. Although men, women and many children have been killed across the country, a disproportionate number of the victims have been from the Baluch community in the city of Zahedan. Many deaths and casualties have been reported in Kurdistan as well.

   The number of executions has more than doubled in the first half of 2022, with 251 executions compared with 117 during the same period in 2021. A disproportionate number of these executions involve individuals from minority groups. The Islamic Republic has a track record of
   using deadly violence, particularly in the borderland areas which are populated by ethnic minorities. The political and legal history of Iran provides a better understanding of the roots of this violent state-society confrontation, particularly in the borderland regions.

   The economic crisis and the lack of political accountability had already caused dangerously high tensions between state and civil society long before Jina Amini’s death. In addition to the nationwide demonstrations in 2019-2020, when at least 1,500 Iranians were killed by security forces, demonstrations continued to occur across the country. The political and geographic extent of the protests has also widened. Although Tehran and other major urban centres were the main arenas for political protest in the past, many citizens in the peripheral regions of the country are now openly challenging the status quo. Some of the provinces that have become hotbeds of dissent are inhabited predominantly by ethnic minorities.

   Although most of these demonstrations were initially triggered by economic grievances, many protesters have gone beyond their immediate economic demands to question the legitimacy of the Islamic Republic and its leaders. However, in the nationwide protests of 2022, the slogans have targeted the ideological nature of the Islamic Republic from the very beginning. The stubborn refusal of the Islamic Republic to reform has resulted in a political crisis and an increasing public distrust over the current regime, which came to power by revolutionary force in 1979. Predictably, this situation has paved the way for further securitization of Iranian civil society by the state.

   Most of the borderland provinces, which are populated by religious or ethnic minorities, are facing even graver economic, political and environmental problems. Since 2020, significant protests have taken place in the province of Khuzestan, which is home to a large Iranian Arab
   population. Although Arabs in Iran have faced many years of discrimination and underdevelopment, the community is now increasingly prepared to take risks within a volatile
   and shrinking civic space. Thus, Arabs and other minority communities are ready to challenge discriminatory policies and practices. Yet, the state increasingly depends on violent mechanisms of social control to restrain minority activists. For example, when the people of Khuzestan protested against life threatening water shortages, the state offered no short-term solution, and instead flooded the streets with security forces which were brought in from other provinces to crackdown on protestors. Patterns of state repression of civil society demonstrate that government authorities are more likely to use excessive violence to stifle minority expression, activism or dissent in ethnically dominated provinces such as Kurdistan, Baluchistan and Khuzestan.

   Furthermore, the situation in Iraq, Syria and Yemen is on the whole characterised by a dangerous combination of environmental problems and discriminatory state practices. Indeed, where discriminatory policies are enforced by the state, factors such as drought can increase the chance of both intercommunal violence and state-society conflict. Minorities in borderland regions of Iran face harsh environmental challenges, compounded by the burden of state discrimination. These conditions are intensifying identity-based conflicts in the region, especially violent and uncontrollable forms of conflict.

   Overall, environmental problems, political corruption, widespread economic crises and repression of civil society have created a ticking timebomb. Violence may develop into further conflict unless conditions are addressed at the political and legal levels. The situation is particularly serious in the borderland provinces, where longstanding discrimination and cultural repression have negatively impacted ethnic and religious minorities. As Iranian civil society builds pressure on the state, international support and action is vital at this critical juncture to support and protect vulnerable communities and activists at risk, while putting pressure on the Islamic Republic to become more accountable for its record on minority and women’s rights.

6. The Human Rights Watch report, 21 December 2022, ‘Iran: Brutal Repression in Kurdistan Capital’, states:

   Iranian Security Forces used excessive and unlawful lethal force against protesters in Kurdistan province's capital, Sanandaj, in October and November 2022, Human Rights Watch said today. … “The Iranian authorities have unleashed alarming violence against protesters in Sanandaj since September,” …. “Both the protests and the government’s brutal response to them reflect the government’s longtime repression of the Kurdish people’s cultural and political freedoms.”

   …  Security forces using shotguns and Kalashnikov-pattern assault rifles fired live ammunition, pellets, and teargas at and towards protesters. They also fired teargas into homes and destroyed private property. One agent in civilian clothes fired an assault rifle at apartments.

   … On November 17, 40 days after the killing of the four protesters on October 8, the day when people typically gather to mourn the dead, thousands of people gathered in the Behesht Mohammadi cemetery. Witnesses said that the Iranian police special units and the Revolutionary Guards attacked and shot at mourners, killing at least two people. The witnesses identified the forces by their uniforms.

   … Human Rights Watch documented serious abuses against detainees, including women and children. The violations included arbitrary arrests, denial of medical care, and torture and other ill-treatment, including threats, beatings, and sexual harassment and assault. The authorities routinely failed to provide information to families about the circumstances and whereabouts of people in their custody.

   Two women arrested together during the first week of protests in September said that security forces beat, sexually assaulted, and threatened them with rape during arrest and while they were held at the police station. A family member of a 17-year-old girl arrested in October said the police threatened her with sexual assault and sexually harassed her at the police station. One of the women said that during her arrest in September, a security officer hit her neck, threw her to the ground, and dragged her by the hair before six or seven officers beat her. One then kicked and beat her with a baton while forcing her into a car. She said she suffered internal bleeding and fractures.

   The two women said that after being held at the police station, they and other female detainees were transferred to Sanandaj’s juvenile correctional center. There, they said they were forced to take turns sleeping on the floor due to insufficient space and did not have enough blankets. They said the police did not inform their families about their arrest or admit they were holding them when their families came to look for them. …

7. The Human Rights Watch report, 13 December 2022, ‘Iran: Death Sentences Against Protestors’, states:

   Iranian authorities’ execution of two men in connection with widespread antigovernment protests is a gross miscarriage of justice and a dangerous escalation….. According to human rights groups, revolutionary courts of first instance have issued at least 11 other protest-related death sentences and are expected to try dozens more, including children, for charges that can carry the death penalty.

   The charges against the protesters have included vaguely defined national security charges such as enmity against God (Moharebeh), corruption on earth (Ifsad fil arz), and armed rebellion (baghi). All of the vaguely worded crimes are capital offenses. The rushed trial proceedings, in which defendants are apparently prevented from having a lawyer of their choice, appear to fall grossly short of international standards.

   “The trials of those who are facing capital charges related to protests have been a total travesty of justice,” …. “The defendants are reportedly tortured into confessing, deprived of access to lawyers of their choosing, and rushed through trial proceedings that bypass safeguards in Iran’s own penal code and criminal procedure law.” …

8. The Human Rights Watch report, 3 November 2022, ‘Iran: Thousands of Detained Protestors and Activists in Peril’, states:

   Iranian authorities have escalated their assault against widespread dissent and protests through dubious national security charges against detained activists and grossly unfair trials, Human Rights Watch said today. On October 31, 2022, the head of Tehran Province’s judiciary said that it had issued around 1,000 indictments against those arrested related to protests.

   … An informal network of activists inside Iran, known as the Volunteer Committee to Follow-Up on the Situation of Detainees, said that as of October 30, in addition to mass arrests of protesters, intelligence agencies have arrested 130 human rights defenders, 38 women rights defenders, 36 political activists, 19 lawyers, and 38 journalists, the majority of whom remained in detention. … According to the group, authorities have also arrested 308 university students and 44 children. Over the past three weeks, security forces have repeatedly attacked university campuses with excessive use of force, including teargas, and arrested students. University authorities have barred dozens of students from entering university campuses for participating in the protests. … Since September 16, the protests have spread to at least 133 cities and 129 universities as well as several secondary schools, according to the Human Rights Activists News Agency (HRANA).

   Human rights groups are investigating the reported deaths of at least 284 people, including 45 children. Dozens of security forces have also reportedly been killed, according to state media. Human Rights Watch has documented security forces’ unlawful use of excessive or lethal force including shotguns, assault rifles, and handguns against protesters in largely peaceful and often crowded settings in 13 cities across the country. …

1. On 16 January 2023 the Sydney Morning Herald reported on the mother of an Australian-Iranian protestor being jailed in Iran because of her child’s protest activities in Australia. There were further reports of other relatives of active Iranian Australians being jailed and/or interrogated in Iran due to political activities in Australia.[5]

   [5] Sydney Morning Herald, 2023, ‘Iran cracks down on family of Australian protesters Secret Arrest’, 23 January.

2. In December 2022 the Australian Federal Police were reported to have “urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, expressing concern about state actors monitoring the online presence of people attending protests against the country’s oppressive laws.”[6]

   [6] THE GUARDIAN, 2022, ‘AFP URGES IRANIANS IN AUSTRALIA TO REPORT HARASSMENT BY TEHRAN AUTHORITIES AS ANTI-GOVERNMENT PROTESTS ESCALATE’, 22 DECEMBER.

3. A November 2023 report by Human Rights Watch states:

   Iranian security forces used excessive force on protesters commemorating the anniversary of the brutal “Bloody Friday” government crackdown on large anti-government demonstrations in 2022, Human Rights Watch said today.

   Security forces fired “birdshot” shotgun pellets, rubber bullets, and tear gas and beat and otherwise assaulted protesters on September 29, 2023, and again on October 20. The United Nations Independent Fact-Finding Mission on Iran should investigate the pattern of excessive force and arbitrary arrests at protests, particularly in areas with large ethnic and religious minorities such as the city of Zahedan in Sistan and Baluchistan province.

   “Iranian authorities are as committed as ever to brutally crushing protests of their own people who demand fundamental change,” said Tara Sepehri Far, senior Iran researcher at Human Rights Watch. “Security forces also appear to deploy excessive and lethal force even more quickly in cities like Zahedan that have large ethnic and religious minority groups.”

   Human Rights Watch interviewed three witnesses to the September 29 protest and one on October 20 and verified and analyzed 14 videos posted to Telegram between September 29 and October 5. These show that on September 29, security forces were armed with shotguns and machine guns and deployed tear gas against protesters, beating them with batons outside the Maki Mosque in the city center of Zahedan. Witnesses told Human Rights Watch that security forces shot at protesters with birdshot and paintball pellets to their upper bodies, beat them with batons, and arrested large numbers of protesters, including children.

   … The recent protests commemorated the deadly repression on September 30, 2022, in Zahedan, the predominantly Baluchi capital of Sistan and Baluchistan, one of the most economically marginalized areas of the country. On this day, known as “Bloody Friday,” Iranian security forces employed unlawful lethal force, resulting in the deaths and injuries of several dozen protesters, the largest number of casualties on any day during the 2022 protests. Those who were killed included people leaving the Friday prayer at the Grand Mosalla Prayer Hall.

   ….
   According to Haalvsh, between September 29 and October 1, the authorities arrested at least 216 people in the cities of Zahedan, Khaash, Mirjaveh, and Chabahar in Sistan and Baluchistan. Security forces beat many of those arrested, Haalvsh found.  A woman from Zahedan said, “I witnessed an elderly man who wasn't even participating in the protest and was simply leaving the mosque after the prayers. He was attacked violently by security forces. They beat him with batons and dragged him on the ground so forcefully that his clothes were torn apart. After, they arrested him and took him away on a motorcycle.”

   … The authorities have made no efforts to pursue justice for the families of the Bloody Friday victims. An informed source said that government officials pressured families seeking justice to stay silent in exchange for diyah, a term in Sharia, or Islamic law, for financial compensation for intentional harm or loss of life, which most families rejected, instead demanding accountability for those responsible for their relatives’ deaths. Victims without proper identification documents were not offered compensation.

   Prosecution

4. If a person who leaves Iran has been sentenced to a penalty such as imprisonment this will remain on the person’s penal record indefinitely until the sentence is implemented. Where a trial is scheduled but has not commenced before the person’s departure then generally the case will remain open until the person’s return. There is also reportedly a high degree of arbitrariness in the Iranian judicial system. For example a court can issue a verdict in absentia for all types of crimes, except for hadd offence convictions.[7]

   [7] Danish Refugee Council and Danish Immigration Service, ‘Iran: Judicial issues’, February 2018.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant submitted copies of his official Iranian identity documents. On the basis of these documents and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Iran. The Tribunal assesses the applicant’s claims against Iran as his country of nationality and receiving country.

   Credibility

6. The applicant claims to fear harm in Iran as a Kurdish person who has been involved in anti-regime protest activity in both Iran and Australia, who left Iran while charges were pending against him, and who has converted from Islam to Christianity in Australia.

   Kurdish Ethnicity

7. The applicant has consistently maintained that he and his family are ethnic Faili Kurds.  There is no indication before the Tribunal that the applicant is not an ethnic Faili Kurd. In view of the available evidence the Tribunal accepts that the applicant is an ethnic Kurd.

   2009 Election Protest

8. The applicant claims to have participated in the 2009 protests about the results of the then Presidential election in Iran. The protests were widespread and popular, attended by many Iranians particularly youths.  The applicant has been consistent about his participation in the 2009 protests.  He did not appear to exaggerate his involvement.  He did not claim any adverse interest from the authorities arising from his participation in the protests. The Tribunal accepts that the applicant participated in the 2009 Election protests in Iran.

   [Occupation 1] Protest

9. The applicant has also been reasonably consistent about his active participation in a [Occupation 1] protest in the Grand Bazaar in Tehran in [month] 2012, throughout his visa application and review processes.

10. There are reports of large scale economic protests occurring in Tehran’s Grand Bazaar in October 2012 but no reports of any protest gatherings there in [month] 2012. The Tribunal notes that, according to the applicant’s evidence, the [Occupation 1] protest was relatively small and was quickly shut down by the authorities. It is therefore plausible that it was too small and too short-lived to warrant mention in international reports.

11. Further, country information indicates that the factors which the applicant claimed to be the motivation for the protests, did exist at the time.

12. The Tribunal therefore gives the applicant the benefit of the doubt that he did participate in a [Occupation 1] protest in Tehran’s Grand Bazaar in May 2012.

    Arrest and Detention

13. The applicant claims he and about ten others were arrested in the [Occupation 1] protest and that he was detained in a cell for about 20 days.  The applicant claims he was released, pending trial, after other detainees had been released and had informed his family where he was being held.

14. The applicant has been reasonably consistent about his arrest and detention. The applicant was also able to readily answer the Tribunal’s questions for further detail about his claimed arrest and imprisonment and his responses were both plausible and consistent.

15. Further, the available country information supports his claims that both arrest and detention can be quite arbitrary and that prison or cell conditions are poor, as the applicant described.

16. On the evidence before it the Tribunal therefore accepts that the applicant was arrested and detained as claimed.

    Protest Activity in Australia

17. The applicant submitted evidence that he has participated in several public protests in Sydney in support of the protests which erupted in Iran in September last year. He gave oral evidence about this and also submitted mobile phone videos he had made while participating in the demonstrations.  

18. The Tribunal accepts that the applicant has participated in recent public protests in Sydney against the Iranian regime.

19. The Tribunal notes the question arises as to the applicant’s motivation to publicly protest here against the Iranian regime, and whether he is only doing so to strengthen a refugee claim. 

20. The anti-Iranian regime protests have attracted widespread popular support within Iran and amongst the diaspora worldwide.  The applicant is also a member of the Kurdish ethnic minority within Iran who has experienced restrictive and discriminatory measures by the Iranian authorities.  He also has a history of occasional participation in demonstrations against the regime in Iran. He was well able to express his views about the injustice he perceives from the Iranian regime and his hopes for change.

21. The Tribunal is therefore satisfied that the applicant has engaged in protest activity in Australia for reasons other than strengthening a refugee claim.

    Christianity

22. It is of concern to the Tribunal that the applicant failed to mention his conversion to Christianity in his first Protection visa application. His explanation that he was advised by his then representative not to disclose his conversion makes little sense. The Tribunal considers it possible that the applicant is not genuine in his adoption of Christianity but is trying to create a protection claim. The Tribunal considers that, at least initially, it is likely the applicant was not genuine regarding his reasons for participating in a Christian church and being baptised. 

23. However the applicant has provided quite comprehensive evidence that he subsequently identifies as a Christian in Australia.  He was able to explain why he chose the Christian faith, how he practices his faith, the significance of his faith to him, and how he believes Christianity differs from and is preferable to Islam.  He was also able to discuss stories from the bible chapter he was familiar with, in some depth and relate them to his faith.

24. In the Tribunal’s view there is insufficient evidence before it to be confident that the applicant has not genuinely adopted the Christian faith since coming to Australia. The Tribunal therefore gives him the benefit of the doubt that he has converted to Christianity in Australia.

    Fear of Harm in Iran

25. The Tribunal has accepted that the applicant is a Faili Kurd who participated in the election protests of 2009; a small, brief [Occupation 1] demonstration in 2012 resulting in his 20 day detention; and anti-regime protests in Australia. The Tribunal has also given him the benefit of the doubt that he has converted to Christianity in Australia.

26. If the applicant returns to Iran the Tribunal considers that there is a real chance he will continue to participate in public protests against the Iranian regime, which continue to occur in Iran. The available information shows that demonstrations and protests have been popularly attended by Kurdish communities within Iran, particularly the protests occurring since September 2022 arising out of the death of a young Kurdish woman, Mahsa Amini.  Further, the applicant has participated in similar protests in the past in Iran as well as recently in Australia. He was able to establish a seemingly genuine commitment to publicly voicing his concerns about the regime and advocating for increased freedoms in Iran.

27. The applicant’s vulnerability to adverse attention from the Iranian authorities is heightened by the outstanding charge against him arising from his past arrest for the [Occupation 1] protest and his failure to present to court; and his conversion to Christianity.

28. The available country information highlights the large numbers of arrests, detentions, beatings and mistreatment of detainees used against protestors in the regime’s crackdowns upon protest activity.  There have also been shootings, executions, and death sentences imposed upon protestors. The available information states that Kurdish protestors are at a significantly increased risk of being harmed in these ways.

29. The Tribunal is therefore satisfied that there is a real chance the applicant will be exposed to serious physical violence, arrest, detention, and serious mistreatment in detention by participating in anti-regime protests in Iran.  The Tribunal finds that these harms amount to serious harm and that the essential and significant reason for the harm is a combination of the applicant’s political opinion and his Kurdish ethnicity.

30. The Tribunal is also satisfied that the harm is a result of systematic and discriminatory conduct in that it will be done to the applicant intentionally and selectively.

31. As the state is responsible for the harm the Tribunal is not satisfied that the applicant has access to available protection against the harm.  The Tribunal is also satisfied that the risk to the applicant exists in all parts of Iran.

32. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in the Iran as defined by s 5J of the Act.

    Section 36(3)

33. There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s 36(3) of the Act.

    Conclusion

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

    DECISION

35. The Tribunal:

    a.remits matter 1909062 (Temporary Protection visa Enterprise visa, application made on 19 February 2016) with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

    b.sets aside the decision in matter 2107439 to refuse the applicant a Safe Haven Enterprise visa, application made on 14 October 2020, and substitutes it with a decision that the visa application was not valid.

    Melissa McAdam
    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.

    …