1909167 (Refugee) - [2024] AATA 2466

1909167 (Refugee) [2024] AATA 2466 (3 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ali Mahmood Alkafaji
CASE NUMBER:  1909167 and 2108229
COUNTRY OF REFERENCE:                   Stateless
MEMBER:Sean Baker
DATE:3 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal:
i.remits the decision in matter 1909167 (Safe Haven Enterprise visa application) made on 24 April 2018 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and

ii.sets aside the decision in matter 2108229 to refuse the applicant a Temporary Protection visa application made on 1 June 2021 and substitutes it with a decision that the visa application was not valid.

Statement made on 03 April 2024 at 4:55pm
CATCHWORDS
REFUGEE – protection visa – Stateless/Iran – ethnicity – Faili Kurd – arrival by sea – not unauthorised maritime arrival or fast track applicant as defined – statutory bar does not apply – first application valid so second application not valid and no jurisdiction to review – parents expelled from Iraq and applicant with no right to citizenship in Iraq or Iran – no or limited rights, no access to basic services, and economic hardship – brothers worked illegally and were approached to join militia to fight in other countries – obtained and departed on fraudulent passport – refugee registration ceased and not possible to re-register – parents and one sister currently registered – consistent evidence and documentation – country information – penalties for using of fraudulent documents – enforcement of generally applicable law – real chance of serious harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), 5J(1), 36(2)(a), 48A, 65, 91K
Migration Regulations 1958 (Cth), Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
DZABG v MIAC [2012] FMCA 36
MICMSMA v CBW20 [2021] FCAFC 63
SZSPX v MIMAC [2013] FCCA 1715
Taiem v MIMA [2001] FCA 611
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 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.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 6 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.
The applicant applied for a Safe Haven Enterprise visa on 1 April 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. 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. Following this, the applicant purported to make a second application for a Temporary Protection visa on 28 September 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.
The first application for a Safe Haven Enterprise visa on 1 April 2016 was refused by the delegate on 24 April 2018. The delegate refused to grant this visa on the basis that it was accepted the applicant was a stateless Faili Kurd but that he would not be persecuted or face a real risk of significant harm on return to his country of former habitual residence, Iran. After originally notifying the applicant that he could seek review through the IAA, the Department re-notified the applicant that he could seek review thought the AAT on 23 March 2019. An application for review of that decision was made on 13 April 2019.
The second visa application was refused by a delegate on 1 June 2021. An application for review of that decision was made on 25 June 2021. 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.
This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 24 April 2018 and 1 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age]-year-old Stateless Faili Kurd whose country of former habitual residence is Iran. He was born in Khorramabad, Lorestan but lived most of his life in Isfahan. He speaks Faili Kurdish, Farsi and Arabic.
The applicant appeared before the Tribunal on 9 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer persecution on return to Iran or, if not, whether there is a real risk he will suffer significant harm if he is removed from Australia to Iran. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims
In his original application for protection the applicant made claims that he is stateless, a Kurdish Faili of [Tribe] and a Shia Muslim. Before he was born his parents were expelled from Iraq to Iran but were not granted citizenship. The applicant, born in Iran, had no rights to citizenships in Iraq or Iran. He was denied fundamental rights in Iran to study or work and had no support from the government. The applicant was not allowed to leave Isfahan. He left Iran because he felt it was not his country, it is extremely difficult to live in Iran. He has had some altercations with the police and been arrested with no charges laid. On one occasion he was forced to cut his hair. Because people of his ethnic group were being persecuted and denied essential rights, he was in a constant state of fear. He paid a people smuggler who was able to obtain a fraudulent passport that the applicant then used to flee Iran. When he boarded the boat to Australia he was forcefully told to get rid of his documentation, including his fraudulent passport. He fears denial of essential rights if returned to Iran and the constant oppression he experienced as a Faili Kurd. He fears that he will be questioned about his fraudulent passport and may be imprisoned or even killed.
The delegate accepted that the applicant was a stateless Faili Kurd who had lived his life in Isfahan. The delegate also accepted that the applicant had departed Iran with a false [Country] passport.
In submissions it was claimed that although the applicant was a registered Faili Kurd when he departed Iran, as he held an Amayesh card (which the applicant also referred to as a white card[1]), having left Iran in 2012, were he to return he would be an unregistered Faili Kurd as it was not possible to be re-registered under Iranian refugee law.[2] The submission notes that [Number] of his siblings are unregistered as they lost the right to renew their cards for different reasons.
[1] Note also that it appears that the card issued to Iraqi Nationals or those considered Iraqi nationals by the Iranian authorities was at some point referred to as the Hoviat card - Announcement on the launch of registration for Amayesh cards 17 and Hoviat cards 16 - UNHCR Iran, and is now the Unified Smart ID Card - UNHCR Iran - Help for refugees and asylum-seekers.
[2] DFAT, “DFAT Thematic Information Report – Faili Kurds in Iraq and Iran”, 3 December 2014, 2.21.
The submission goes on to note that the applicant’s family are still stateless. Evidence of this was provided in the form of the family’s Amayesh cards, some issued in June 2023. It was also submitted that the applicant and his family had only limited rights to travel outside Isfahan and had to apply for a right to travel. Evidence was provided of letters issued by the Iranian authorities to some of the applicant’s siblings giving them limited authority to travel out of their designated areas in Iran.
It is submitted that although the applicant’s Amayesh card issued on 20 June 2012 lists his nationality as Iraqi, this does not mean the applicant is a national of Iraq.
The submission noted that both delegates had found the applicant to be a stateless Faili Kurd who would suffer a level of discrimination on return to Iran but that if he returned to Esfahan his ability to subsist would not be threatened despite him returning as an undocumented stateless Faili Kurd.
The submission claimed that the applicant’s brothers were approached by the Basiji and Ettela’at to join a Faili Kurdish militia that was to be sent to fight in Syria and Iraq. His brothers were not interested in politics and did not want to get involved so they refused. He said because they refused the family faced harassment from the Iranian authorities.
It was submitted that the level of discrimination the applicant faces on multiple levels on his return to Iran constitutes significant economic hardship and a denial of access to basic services to the extent that his capacity to subsist would be threatened. It is also noted that the most recent DFAT report assesses that there is a high risk of official discrimination against unregistered Faili Kurds.
The submission concludes by stating that:
·     It has been established that the applicant is an unregistered stateless Faili Kurd who has no rights in Iran, which it was argued led to a risk of real harm in that country, particularly cumulatively.
·     As a stateless person the applicant cannot be removed to Iran because he will not return there and Iran will not receive him.
·     This lacuna would lead to the applicant being detained indefinitely in Australia in circumstances where he is unable to apply for any other visa and in circumstances where there is no solution for him to leave detention and be released to the community.
Provided with the submission were the Amayesh cards of the applicant and his family, documentation about renewal, documents relating to their residence in [Location] camp and then Isfahan, travel permits for his siblings, lease documents, and English translations of the above, as well as documentation from the IAA noting that the applicant had been referred to the IAA in error.
The hearing
At the hearing the applicant confirmed all of the above. I asked him about his family’s displacement from Al-Najaf Iraq, about [Location] camp where he was born. He referred to and discussed the photographs of himself and his family at the camp. He noted that when they were moved to Isfahan they did not have any choice. He said that his brothers worked illegally but that it was difficult, and the applicant supported the family with the wage he earned in Australia. He confirmed that some of his family were still registered as refugees and had to renew their registration each year, whilst others were unregistered. He said that the card was just an ID card and they could not buy a SIM for a mobile, could not open a bank account, could not go out of the city, and had to pay double for the Doctor. He described the abuse and harassment they received from the authorities and Persian Iranians. He described the incident where his hair was cut as well as being detained when he left Isfahan without permission. He described working illegally. He said that there were very few other Kurds in Isfahan. The applicant also described his life in Australia. He worked as [an Occupation] and sent money home to support his family. He has not family in Australia. when asked why he feared returning to Iran he said that a person wants to live, he could not keep living in persecution and hunger and oppression and humiliation. He said that the Iranian people are angry, there are executions, prisons, the regime support terrorism and support militias in Syria and Iraq, they hurt normal people and Iran mocks other people and enlists the poor people. When I asked what his life would be like if he returned to Isfahan he said that he could not go there, he is not a citizen and would not be accepted by Iran.
The applicant’s representative reiterated the submissions, there was a high level of official discrimination and cumulative harm to the applicant. He would be blackmailed or extorted by prospective employers. If the applicant were returned, he would be arrested at the airport, it was not clear how long he would be held, and he had no valid identity documents and might be removed to Iraq. He further noted that the applicant had used a forged [Country] passport, and he would attract adverse government attention for departing illegally and using a forged [Country] passport. There would be a risk the applicant would be charged with using a smuggler or being associated with smuggling activities. There was a risk the applicant would be forcibly recruited to a militia to fight in Syria or Iraq. It was noted that if the applicant is not removed to Iran he would not have a right to any other visa in Australia.
Findings and analysis
I have had regard to the evidence of the applicant, which has been always consistent. I have had regard to the documentation provided for the applicant and his family, including refugee registration cards for some of his family members from 2023. I have had regard to the country information about the situation of Faili Kurds in Iran. I note that the refugee cards provided indicate a consistent requirement for those of the family still registered o remain registered up until at least 2023, strongly indicating that the applicant’s family remain registered refugees and have not obtained citizenship at any point. The other documentation including the lease and the photographs also strongly supports the applicants claims to be stateless and that his family remain stateless.
On the basis of this information, I accept, as did the delegate, that the applicant is a stateless Faili Kurd, born in Lorestan and residing in Isfahan until his departure from Iran in 2012. I accept that his family remain stateless, with his parents and sister registered but most of the rest of hs siblings being undocumented. I accept that he departed Iran on a fraudulent [Country] passport in his name and with his photograph. I accept the submission that the applicant, having now left Iran and not applied for renewal of his Amayesh card, he would not now be able to renew it.[3] I accept therefore that the applicant would be returned to Iran as an unregistered stateless Faili Kurd.
[3] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014, 2.21; 3.35 – 3.39.
Undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death or marriage certificates.[4] DFAT assesses that Faili Kurds in Iran may experience a high level of official discrimination in the form of statelessness and may live in poor conditions in Iran. DFAT cannot confirm societal discrimination or violence against Faili Kurds.[5]
[4] DFAT, DFAT Country Information Report – Iran, 24 July 2023, 2.59.
[5] DFAT, DFAT Country Information Report – Iran, 24 July 2023.

Whilst it is noted that registered Faili Kurds have access to some services, unregistered refugees do not have access to services. While there may be informal access to employment, as the applicant spoke of at the hearing, this is in low-paying positions, pay and work conditions are significantly worse than Iranians doing the same work, and I note that the applicant does not come from Ilam or Kermanshah where there may be greater sympathy for Faili Kurds.
There are reports of persons departing Iran on fraudulent passports.[6] According to Article 34 of the Penal Code, the penalty for leaving the country without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (AUD420). A special court located in Tehran’s Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances. This procedure also applies to people who are deported back to Iran and who are not in possession of a passport containing an exit visa. DFAT understands that illegal departure is often prosecuted in conjunction with other unrelated offences.[7] This is supported by the most recent DFAT report which states that ‘Stiff penalties for use of fraudulent documents act a major deterrent.’[8] This report also notes that those who return on a basis other than with a genuine Iranian passport (as I find would be the case with the applicant), would be subjected to questioning by the Iranian authorities on return.[9]
[6] Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, p.67http:// Department of Foreign Affairs and Trade 2009, CIS Request No. IRN 9702; Iranian air force lieutenant involved in activities against Islam, 18 May.
[7] DFAT Country Information Report – Iran, 7 June 2018,5.33.
[8] DFAT, DFAT Country Information Report – Iran, 24 July 2023, 2.217
[9] DFAT, DFAT Country Information Report – Iran, 24 July 2023, 2.203
If the applicant were to be imprisoned, conditions are poor. In a February 2023 report on the situation of human reports in Iran of the UN Special Rapporteur, 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).[10] The United States Department of State reports that ‘Prison conditions were harsh and frequently life threatening due to food shortages, gross overcrowding, physical abuse, inadequate sanitary conditions, and withholding of adequate medical care.’[11] The report also notes that:
Human rights organizations observed that the government’s application of the death penalty disproportionately affected ethnic minorities (see section 1.a.). Authorities reportedly subjected members of minority ethnicities and religious groups in pretrial detention to more severe physical punishment, including torture, than other prisoners, regardless of the crime of which they were accused. These ethnic minority groups reported political and socioeconomic discrimination, particularly in their access to economic aid, business licenses, university admissions, job opportunities, permission to publish books, and housing and land rights. In a July report, the UNSR expressed particular concern that minorities, specifically those from the Kurdish minority, were disproportionally affected by arbitrary detention. The UNSR also noted that a disproportionate number of persons executed based on drug-related charges belonged to minority communities, especially the Baluch community.[12]
[10] DFAT, DFAT Country Information Report – Iran, 24 July 2023, 2.198
[11] USDOS Human Rights Report 2022, Iran, 20 March 2023.
[12] USDOS Human Rights Report 2022, Iran, 20 March 2023.
The Iranian government does not accept involuntary returns according to DFAT.[13] Whilst the MOU between Australia and Iran made in March 2018 may facilitate the return of Iranian citizens, the applicant Is not covered as he arrived prior to the signing and, I have found, is not a citizen. Whilst voluntary returns are possible, the information indicates that the applicant would not be accepted to return to Iran on the basis that he has no legally enforceable right to return as a stateless former registered refugee holder.
[13] DFAT, DFAT Country Information Report – Iran, 24 July 2023, 2.202
The inability of the applicant to return to Iran, his country of former habitual residence, is not relevant to my consideration of whether he satisfies the definition of a refugee under the Act or the criterion for complementary protection.[14] Neither does the inability to re-enter Iran because he has no right of entry, constitute persecution in and of itself.[15] Rather, I must consider the hypothetical possibility of whether the applicant has a well-founded fear of being persecuted on the basis of what would happen if he was to return to Iran, not whether they could return there.[16]
[14] S 5H.
[15] Taiem v MIMA [2001] FCA 611 at [14].
[16] SZSPX v MIMAC [2013] FCCA 1715 at [42], [69]–[70].
This is so despite the fact that Australia has acceded to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. It has been reasoned that an individual’s statelessness should not be regarded as adding to their disadvantageous circumstances such that he or she could be regarded as a refugee rather than as a stateless person.[17]
[17] DZABG v MIAC [2012] FMCA 36 at [132].
I have concerned therefore what will happen to the applicant if he was to return to Iran. I find that he would have to do so as the holder of a laissez passer, as I have accepted he is stateless and not entitled to a passport of any country. This would bring him to the attention of the Iranian authorities at the airport, where, as above, I find that he would be questioned and, as a result of this questioning, it would become apparent that he had departed Iran on a fraudulent [Country] passport. I find that he would be charged with departing the country without a valid travel document and may also be charged with offences related to the use of a fraudulent document. I find that there is a real chance that he would be imprisoned for between one and three years.
Whilst this would be the enforcement of a generally applicable law (and there is no information I can find that the law is selectively enforced), the treatment of the applicant whilst imprisoned is what I am concerned with. It is clear that the conditions in prison for all detainees are dire, and the conditions of physical abuse, overcrowding and lack of sanitation would almost certainly rise to the level of serious harm. The information before me is clear that minorities are treated differently, and more harshly, in detention and prison that other detainees/prisoners.
I find that the applicant, as a distinguishable member of a minority, being Faili Kurds, would be differentially treated whilst imprisoned, on this basis. I note the applicant’s evidence, which I accept, that many Persian Iranians refer to Kurds including Faili Kurds, as Iraqis, who speak Kurdish and Arabic, and blame or impute blame to Kurds for the deaths of Iranian soldiers during the Iraq-Iran war, that they consider the Faili Kurds to be Iraqi and to have no legitimacy in Iran. I find that there is a real chance that this attitude would be taken by prison guards or other officials in detention and prison and would lead to the applicant being targeted for physical harm and mistreatment amounting to serious harm as detailed in the country information whilst in detention and prison on this basis for reasons of his ethnicity as a Faili Kurd and imputed nationality as an Iraqi.
Once the applicant was released from prison, he would have no choice but to return to Isfahan, he is not able to reside anywhere else. In Isfahan he would be an unregistered Faili Kurd and would have no rights to work or medical care. He would be subjected to scrutiny by the authorities and have no freedom of movement. He would have the support of his family, but I accept that they too are stateless and that apart from his elderly parents and one sister, are also unregistered. In this situation the applicant would struggle to be able to support himself and his family such that it may impede his capacity to subsist. Official discrimination against him in the form of statelessness and being forced to live in poor conditions is considered high risk by DFAT, and this is born out by the applicant’s and his family’s experiences. The lack of stable employment, such that it would threaten the capacity of the applicant to subsist, the high official discrimination, and the lack of freedom of movement to improve the situation for him and his family, or to seek better conditions in Ilam or Kermanshah, cumulatively, I find, would constitute serious harm.
I find that there is a real chance, that is one that is not remote, that the applicant would be charged and detained on return, imprisoned and subjected to harm amounting to serious harm in prison, that on release he would be subjected to official discrimination and treatment such as having no official ability to work or freedom of movement such that it amounts to serious harm.
I find that the applicant will be subjected to this treatment for reasons of his membership of the ethnicity/ race of Faili Kurds, who are distinguishable by their primary language, dress and culture, and his imputed nationality of Iraqi. These reasons are the essential and significant reasons for the persecution, and that harm would be systematic and discriminatory as it would be targeted and non-random.
The real chance of the applicant being harmed in detention or prison relates to all areas because it is treatment from the state and the applicant would not have a capacity to travel to a different area of the country before he was detained and charged on arrival. His treatment in Isfahan is localised, in the sense that there is information that he may receive better treatment were he to live in Ilam or Kermanshah, where there is a greater proportion of Faili Kurds. However, he does not have lawful access to these, or any other, areas of Iran. His last registration was in Isfahan, and now being unregistered he could not seek approval to travel to any other area of Iran.
The persecution relates to his ethnicity and his impute nationality. These are distinguishable by his lack of any official documentation and his speaking Kurdish and Arabic, which would distinguish him from Farsi speaking Persian Iranians. I find that these are innate and immutable characteristics of the applicant, which he cannot be required to alter or conceal. Even were he required to do so, I find that these characteristics could not be concealed.
There are no effective protection measures available to the applicant because it is the authorities and official discrimination which he fears. His inability to work lawfully and lack of freedom of movement are by design of the Iranian regime and should therefore be considered part of official policy in relation to unregistered refugees.
There is no information before me to support a finding that the applicant can enter and reside and country apart from Australia and I find that s 36(3) does not apply in this case.
I find that there is a real chance the applicant will suffer persecution for reasons of his ethnicity/race and imputed nationality if he is removed from Australia to Iran now or in the reasonably foreseeable future. The applicant is a refugee.
I have followed the necessary approach for stateless persons. I note an attribute of statelessness itself is almost universally very significant discrimination and fundamentally impacts every aspect of a person’s life, as the applicant in this case was clearly able to demonstrate, and that the requirement for such persons to demonstrate harm apart from the fact of their statelessness, and the legal distinction in the cases cited above does not speak to the fact that stateless persons in Australia lack another avenue for protection, having no distinct visa category nor pathway to permanent residency.[18]
[18] See Robertson, K., Foster, M., ‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling?, the Conversation, 10 November 2023, ‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling? (theconversation.com)
Conclusions
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
The Tribunal:
i.remits the decision in matter 1909167 (Safe Haven Enterprise visa application) made on 24 April 2018 with the direction that the applicant satisfies s 36(2)(a) of the Migration Act; and
ii.sets aside the decision in matter 2108229 to refuse the applicant a Temporary Protection visa application made on 1 June 2021 and substitutes it with a decision that the visa application was not valid.
Sean Baker
Member

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