1910600 (Refugee) - [2024] ARTA 877

1910600 (REFUGEE) [2024] ARTA 877 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1910600
Tribunal:General Member R Mikhail
Date:10 December 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 10 December 2024 at 10:01am
CATCHWORDS
REFUGEE – Protection Visa – Iran – race – Persian ethnicity – imputed and actual political beliefs – fears harm from the Basij, Revolutionary Guards, the military and the information department – PTSD and major depression – evidence provided – fear of persecution on the basis of his political opinion is well-founded – membership of the same family unit – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant, who claims to be a citizen of Iran, arrived in Australia as an unauthorised maritime arrival on [date] October 2010.
On 20 October 2010 the applicant attended an Entry Interview at the Christmas Island Detention Centre.
On 4 December 2010, the applicant lodged a Refugee Status Assessment request. On 7 December 2010, the applicant attended a Refugee Status Assessment (RSA) interview. On 6 May 2011 he was found not to be owed protection.
On 12 September 2011, the applicant attended an Independent Merits Review (IMR) hearing. On 20 December 2011 he was found not to be owed protection by the IMR.
On 24 February 2012, the applicant lodged an application for judicial review to the Federal Magistrates Court. This application was dismissed by the court for absence from a hearing.
On 12 April 2012, the applicant was released from immigration detention.
On 30 May 2012, a Post-Review Protection Claims Consideration was finalised by the Department in relation to whether the applicant’s case should be referred to the Minister for consideration. The case was not referred to the Minister.
In March 2013, a Ministerial intervention request was lodged on behalf of the applicant.
On 19 September 2014 a, International Treaties Obligations Assessment (ITOA) commenced. On 13 November 2014, the applicant attended an ITOA interview. As part of this assessment, on 24 February 2015 the applicant was sent a Departmental letter which included questions for his comment, to which he provided a response on 10 March 2015. On 17 July 2015 he was found not to engage Australia’s protection obligations.
On 23 May 2018, the applicant was permitted to lodge an application for protection.
On 23 August 2018, the applicant applied for a Safe Haven Enterprise Visa (SHEV application).
On 18 April 2019, a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 28 April 2019, the applicant lodged an application for review of that decision with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
Prior to his SHEV application, the applicant raised claims for protection before the Department of Home Affairs (the Department) under the various non-statutory assessments outlined above. Although some details in his claims changed over the course of these assessments, they can be summarised as follows:
·He is a Shia Muslim and was born in [City 1], Iran. He worked as a [occupation] and a [occupation].
·On one occasion, he was driving [in] the vicinity of the local governor’s residence when he noticed a crowd of factory workers holding a protest rally. They were attacked by the military. Three young men stopped his car. They were frightened and asked him to take them away from the location of the rally.
·Two days later, two persons stopped his [car] on a street and asked him to take them to [an] [office]. When they arrived, they took him inside a room. Three or four other men turned up and started beating him up. He was questioned about his three passengers and if he belonged to any political group. He told his interrogators that the three youths were mere customers. He was punched unconscious. He could offer no further information and, after one week, was released. While he stayed at his sister's home, the Revolutionary Guards came to his own home and questioned the rest of his family. He went to Esfahan where he stayed with a friend until he made preparations to leave the country.
·He left Iran in September 2010.
·The applicant claimed that Iranian authorities continued visiting his family home and looking for him. He fears harm in Iran from the Basij, Revolutionary Guards, the military and the information department.
In his SHEV application, the applicant’s claims can be summarised as follows:
·He left Iran because of his imputed political beliefs. He was often targeted by the Iranian authorities as he frequently breached the rules and codes of conduct of the Islamic Republic. These issues occurred about nine years ago and had since then become irrelevant. He can no longer make a claim because of these issues.
·Since arriving in Australia, he continued to actively express his political opinion against the Islamic Republic of Iran by attending protests in Sydney. His friends and family have been aware of his political views because he posted and shared anti-regime content on social [media].
·His opinions would be deemed anti-regime by the Islamic Government. The applicant is certain that he will face significant harm to his physical and mental wellbeing from the government of Iran if he returns to his home country.
In his SHEV application, the applicant indicated that he was going to provide further details in a separate statement of claims.
The applicant was invited to a SHEV interview scheduled for 19 February 2019.
On 18 February 2019, his legal representative responded that the applicant was severely affected by a mental health condition and that his clinical psychologist has observed symptoms of Post Traumatic Stress Disorder (PTSD) and anxiety. The representative advised that in his recent meeting with the applicant, he observed these symptoms and found that the applicant was having major difficulty retaining information or even understanding basic concepts of the application process or even aspects of his case. He noted he seemed to have extremely short-term memory and is having difficulty communicating, and as such, he was unable to receive instructions and to provide adequate legal advice and it was not possible to provide the Department with a statement of claims.
On 19 February 2019, the applicant’s legal representative submitted a report by a clinical psychologist, which stated that the applicant has been suffering from PTSD and major depression. He indicated the applicant had been receiving ongoing intensive psychotherapy for the past few years and was taking antidepressant medication. The report contained a recommendation against conducting an interview with the applicant because he gets highly stressed when meeting with people he does not know and is unable to effectively communicate in such situations. He noted he had severe concentration and memory problems and would not be able to answer questions effectively due to his cognitive impairments.
On 22 February 2019, the applicant’s legal representative emailed a letter to the Department by a doctor from NSW Refugee Health Service which stated that the applicant was unable to attend his interview with the Department due to being medically unfit from a recent exacerbation of his chronic psychological conditions. It noted he had a long-standing PTSD, anxiety, and depression.
According to the delegate’s decision, given the applicant’s psychological impairment resulting in his documented inability to attend an interview, the applicant was given an opportunity to respond to questions in writing. On 7 March 2019, he was sent a letter by the Department inviting him to provide additional information within the next 28 days. The applicant and his legal representative did not respond to the letter and provided no further information to the Department.
The delegate refused the grant of the visa on the basis that the applicant’s claimed political activism in the form of re-posting critical materials had been undertaken for the sole purpose of serving as evidence to support a new set of claims he presented in the SHEV application. Consequently, he found that the applicant’s conduct falls within s 5J(6) of the Act. He was not satisfied that the applicant had an adverse political profile with the Iranian authorities and found there was not a real chance he will be persecuted for his political opinion on return to Iran or in the reasonably foreseeable future.
The delegate did not accept that, having claimed asylum, or having spent time in Australia will attract adverse interest from the Iranian authorities and did not accept that the applicant was a person of interest to the Iranian authorities at the time of his departure from Iran. He was not satisfied there was a real chance that he would be identified as a person of interest on return to his home country. Therefore, he was not satisfied that there was a real chance that the applicant would suffer serious harm for the reason of being a failed asylum seeker returning from a western country.
In relation to the applicant’s mental health the delegate could not detect any information that would suggest that the Iranian government or the public persecute people with mental illness or psychological disorders. Equally he found there was no country information to suggest that the applicant would be denied treatment for any non-medical reason that might amount to persecution. He did not accept that difficulties the applicant might experience on return to Iran in regard to his mental health will reach the threshold of serious persecutory harm.
In relation to complementary protection, he was not satisfied that the applicant has strongly held views that he would seek to espouse in Iran and that would attract adverse attention. He also found that the applicant will not face a real chance of harm on return to Iran due to returning as a failed asylum seeker and due to his mental health condition.
Review application
The applicant was represented in relation to this review.
On 18 July 2024, a Case Management hearing was held with the applicant’s representative. This hearing could not proceed as the applicant had changed representatives and the new representative who appeared at this hearing had not provided an authority from the applicant that she was his new representative. That authorisation was subsequently received by the AAT.
On 19 July 2024, the AAT sent a letter to the applicant noting that the purpose of the Case Management Hearing was to request particular information from him in order to progress his application. It noted that instead of rescheduling the Case Management hearing, I had decided to send him a letter outlining the information I require as outlined below. It noted this information should be provided by 9 August 2024:
·Submissions addressing whether he was maintaining any of the previous claims for protection he raised before the Australian government prior to lodging his SHEV application.
·Submissions outlining his current claims for protection and any supporting evidence in relation to those claims.
·A recent letter/report from an appropriate medical professional, such as a psychologist or psychiatrist, outlining any current diagnoses impacting his mental health and how it impacts his ability to attend a hearing and give oral evidence. Further that this letter/report state what medication and treatment he may be currently receiving in relation to any mental health conditions and how long he had been receiving this treatment.
On 9 August 2024, the AAT received a submission in response to the above letter. This included a legal submission and two psychological reports dated 1 November 2023 and 16 July 2024 prepared by the same psychologist. The submission stated that:
·The applicant has a well-founded fear of persecution and that he will face significant harm because of his imputed and actual political opinion and being a failed asylum seeker.
·He will face significant harm because of his serious mental health condition and he will not have access to adequate medical treatment.
·He does not rely on any other claims previously made.
·He has since been participating in anti-regime protests around Sydney for a number of years. His participation has increased during the Woman Life Freedom movement. Although his participation has not amounted to being that of having a significant or organisational role, there has been an increase in surveillance by agents and supporters of the Islamic regime. Mere attendance in a protest would be enough to put the applicant at risk of harm. He has also been active on social media, publicly making and sharing posts that are critical to the Islamic regime. While these actions demonstrate his actual and genuine political beliefs he will also be imputed with these opinions in the eyes of the Iranian regime.
·The applicant also suffers from extreme depression, anxiety and also has PTSD. These have arisen due to traumatic events he has experienced in Iran. He was jailed by the Sepah for one month, and during this time he was subject to physical and psychological torture including sexual assault. Because of these experiences he is passionate to see change in Iran which is why he is outspoken about his political opinions.
·He requires consistent visits to his psychologist and doctor to maintain his health and to keep his symptoms as controlled as possible. He also takes medication to treat his mental health. There is little evidence that the applicant will be able to seek adequate care for his mental health in Iran. He will be stigmatised and would face continuous triggers which would ultimately worsen his health. He will therefore face serious and significant harm because of his mental health.
·Further details of his claims will be provided in full submissions when required by the AAT.
The psychological report dated 1 November 2023 stated that the applicant was suffering from severe depression, severe anxiety, severe stress, PTSD, and panic attacks. It also noted he was suffering from schizophrenia. It noted he was not fit for work.
The psychological report dated 16 July 2024 stated the same diagnoses for the applicant but did not state he had schizophrenia. It stated he was scared of seeing any police in Australia and he shows severe stress reaction when he faced any legal place or process. It requested to consider his psychological hardship for recalling or asking him to present at hearing or places which associate with his horrible traumatic life experiences. It stated that his mental and psychological wellbeing could be negatively affected be reviewing his past experiences or any type of stressful situation or questioning and could deteriorate his mental health. It suggested his interview be conducted cautiously to prevent negative repercussion on his overall wellbeing and concentration.
On 20 August 2024, the AAT sent a letter to the applicant requesting that he provide full written submissions setting out all claims made and maintained, and all supporting evidence to be relied upon in respect of his claims. In particular, any available supporting evidence of his political activities in Australia, including social media activity, information in regard to what medication he was currently taking and what condition it had been prescribed for. This information was to be provided by 3 September 2024. A further extension was granted in respect of these submissions which were subsequently due on 10 September 2024.
On 12 September 2024, the AAT received a submission which included a legal submission (September 2024 submission) and the above two psychological reports. The legal submission stated that the applicant feared harm in Iran on the basis of his actual and imputed political opinion and his mental health and the inability for him to seek help and subsist in Iran and cited country information in support.
The above submissions and the psychological reports provided to the AAT did not indicate the applicant had a lack of capacity to attend a hearing due to his mental health. As such, on 23 September 2024 he was invited to a hearing scheduled on 25 October 2024.
On 25 October 2024, the applicant appeared before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. This hearing could not be completed and was adjourned.
Although the applicant had indicated in prior submissions to the Tribunal, that he was not relying on the previous claims he raised in the non-statutory processes before the Department, during the above Tribunal hearing he said his main fear of returning to Iran was because of the torture he endured in Iran and the fact that he had escaped whilst under investigation.
At the conclusion of this hearing, I requested supporting evidence of the applicant’s political activities in Australia, an updated report from his psychologist in relation to whether the applicant had been diagnosed with schizophrenia and any other supporting evidence. This information was to be provided to the Tribunal by 4 November 2024.
On 29 October 2024, the applicant was invited to a resumption of the hearing now scheduled on 26 November 2024.
In November 2024, and prior to the second hearing, the Tribunal received:
·A video and three photos of the applicant attending a protest in relation to Iran in Sydney.
·An image of the applicant’s Iranian birth certificate and an accredited translation.
·A further psychologist report from the same psychologist who had provided the two previous reports, dated 14 November 2024.
After receiving the above evidence, on 19 November 2024 the Tribunal emailed the applicant advising that the resumed hearing was postponed whilst I consider the evidence already before me.
On 20 November 2024, the Tribunal emailed the applicant’s representative advising that any further submissions should be provided by 25 November 2024. At the time of this decision, no further submissions had been received.
I have decided to proceed to a decision on this matter without holding a further hearing as I have been able to make a favourable decision on the evidence before me.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mental health condition

Attached to the 2013 Ministerial request was a psychologist report dated 20 March 2013 which indicated the applicant had been diagnosed with major depression. Another report provided as part of that submission, dated 4 December 2012, noted the applicant appeared to be suffering from both recent and immediate memory loss and his mood was severely depressed and that he was functioning at a very low level and that he avoided leaving his house except for essential appointments and that his symptoms were consistent with a diagnosis of PTSD and severe depression, anxiety, and some psychotic features. A psychologist report dated 27 March 2015 that was provided to the Department as part of the ITOA assessment also indicated he had been diagnosed with major depressive disorder and PTSD which included symptoms of diminished ability to focus and concentrate limited memory. It stated that he was on medication and was having regular counselling and general practice reviews due to the severity of his symptoms. It assessed his mental health to be chronic in nature.
As noted, on 19 February 2019, the applicant’s legal representative submitted a report to the Department by a clinical psychologist, stating the applicant had been suffering from PTSD and major depression and that his symptoms included anxiety, panic attacks, insomnia and nightmares related to past traumatic events, hypervigilance, flashbacks of past traumatic events, constant ruminative worry thoughts about possible doom and gloom, feelings of hopelessness and helplessness, anhedonia, decreased motivation and energy levels, poor concentration, and memory problems.
The psychologist report dated 16 July 2024 also noted he was suffering from severe depression, severe anxiety, severe stress, PTSD, and panic attacks. It stated his mental health was at a critical stage.
I accept this medical information and, given the previous evidence about the applicant’s medical history outlined above, I accept he has been diagnosed with major depression, severe anxiety, severe stress, PTSD, and panic attacks and is still suffering from those conditions. During the hearing, the applicant indicated he was still taking anti-depressant medication and had been taking it since 2010 and I accept that.
The updated psychologist report dated 14 November 2024 noted that the previous reference to the applicant having schizophrenia was a typographical error. I accept that was an error and that he has not been diagnosed with schizophrenia.
The 16 July 2024 psychologist report noted he had problems with attention, concentration, and poor memory. It stated he shows partial amnesia, weak powers of concentration, a short attention span and depressed mood. It stated that he suffers from insomnia, nightmares and intrusive thoughts which trigger negative emotions such as anxiety and fear. Further that he also suffers from distractibility and lack of concentration and frequent flashbacks from past life experiences. It noted he showed severe stress reaction when he faces any legal place or process.
The psychologist report of 14 November 2024 stated the applicant described his mental state as being so overwhelmed by pressure and fear that, during an interview with authorities, he could not recall details or focus on the questions, often responding without clarity. In his own words, he said ‘The day I was interviewed, I didn't know what I was saying because of the mental pressure that came over me there. I forgot everything and when they stressed me, I said whatever came to my mouth. Because I can't focus on anything. Since the day I came, I got sicker, I always have a headache. It's like they are hitting me with a hammer on my head. I had a severe cough that the cold medicine did not help me, I have nightmares, I can't sleep, when I wake up, my whole body is wet with cold sweat. Please help me, I'm really sick’. Although the report did not indicate what interview he was referring to, I consider it was likely a reference to the Tribunal hearing held just prior to the preparation of this report.
The above concerns noted in the 16 July 2024 report about the applicant’s symptoms and the applicant’s own reflections about his behaviour during the Tribunal hearing noted in the 14 November 2024 report, reflect my own observations of his behaviour during that hearing, where he clearly had trouble recalling basic information. For example, during the hearing he indicated he could not remember preparing his application for protection, what identity documents he previously provided to the Australian government, where he previously lived in Iran, what level of education he completed in Iran, and how he exited Iran. At times it appeared he would just provide a response to my question without thinking about it first and then contradict himself later. The hearing also had to be paused on two occasions as the applicant broke down sobbing. I am satisfied these issues are attributable to his mental health condition.
I have taken into account the applicant’s mental health condition in my assessment of his evidence and risk on return to Iran as outlined below.
Identity and nationality
As noted in the delegate’s decision, the applicant had provided different identities to the Department on different occasions. On the biodata form completed when he first arrived in Australia, at his Entry Interview, on his RSA request and during his IMR, he claimed his name was [[NAME 1]] and that he was born on [Date 1].
According to the delegate’s decision and information included in the Departmental file, on arrival in Christmas Island on[date] October 2010, the applicant provided copies of his Iranian birth certificate, his Iranian driver’s licence issued in Ahwaz and a business certificate for a [business]. On 24 February 2015, a certified translation was received of the applicant's Iranian birth certificate which noted his name to be [[NAME 1]], born [Date 1]. On 15 July 2015, a certified translation of the Iranian driver’s licence was received by the Department where the applicant’s name was translated as [[NAME 1]]. The applicant was asked at the RSA interview if he were known by any other name besides [[NAME 1]]. He responded that he never used any other names and there was nothing to change. He stated that his driver’s licence and birth certificate showed his real name as [[NAME 1]]. At the IMR hearing the applicant once more confirmed that his name was [[NAME 1]].
In his response to the commencement of the ITOA, the applicant used the name [[NAME 1]]. It was not until the ITOA interview in November 2014 that he stated his name was [[NAME 2]] and that, while the driver’s licence and birth certificate showed his name as [[NAME 1]], copies of his Iranian identity card and military exemption card he subsequently provided to the Department showed his name as [[NAME 2]]. During this interview, the applicant also claimed he did not leave Iran on a genuine passport but left on a bogus passport issued in a different name and claimed the birth certificate in the name of [[NAME 1]] was a forgery. He stated that, when he was detained by Sepah, his real birth certificate booklet was taken and kept by them. On 10 April 2015, the applicant provided to the Department a copy and a certified translation of an examination certificate, dated 31 October 1995, in the name of [[NAME 2]]. On 15 July 2015, the applicant provided to the Department certified translations of his purported Iranian national identity card and military exemption card which indicated his name to be [[NAME 2]].
At the ITOA interview, the applicant was asked why he failed to provide the above identity documents to the Department on previous occasions. He responded that he now feels safe whereas in the past he was in Australian immigration detention and feared that he would be sent back to Indonesia.
According to the delegate’s decision, the applicant maintained at the entry interview, RSA interview and IMR review that he departed Iran on a genuine Iranian passport issued in his own name and date of birth. He subsequently claimed at the ITOA interview that the passport in the name of [[NAME 1]] was a forged document because his real name was [[NAME 2]].
The delegate, in their decision, did not accept the applicant’s explanation and found his real name was [[NAME 1]].
In his SHEV application the applicant claimed his name was [[NAME 1]]. In that application, in response to the question whether he had been known by any other names, he indicated he had not. In that application he also indicated he departed Iran legally on a passport but that his passport had been taken away by the people smugglers in Indonesia.
However, during the hearing the applicant claimed that [[NAME 2]] was his real name and he just used the name [[NAME 1]] to exit Iran as he had problems in Iran. He also said he used the name [[NAME 1]] in Australia. When I noted that he used this name when he first came to Australia and provided documents to the Department in that name, he said that was correct but then said he could not remember. I then showed him the birth certificate and drivers’ licence that he had provided to the Department and asked if he remembered providing them. He said he did but that they were created in order for him to depart Iran. When I asked if he was saying they were genuine he said he did not think so but then said he did not remember. He also said the passport he used to depart Iran was not genuine but then said he could not remember what happened altogether and how he exited Iran. He said he also could not remember that he had provided other identity documents to the Department issued in the name [[NAME 2]]. When I showed these documents to him, he said they were his and they were genuine. I then asked why he used the name [[NAME 1]] in his SHEV application, he said because it was shorter. When I asked why he would use a name that was not his, he said he was not sure and could not remember. I also noted to him that his [social media] page was in the name of [[NAME 1]]. He said it is because he is known by that name and his friend made his [social media] profile for him and his real name is difficult, and this name was shorter. I also noted this was the name he was using on his Immicard, and he said he liked this name, and he did not like his real name because of the suffix and prefix added to his real name. He said these were added by the Iranian government as they like to add prophet’s names. I noted to him that I may find it hard to believe the government added these to his name and on the evidence, I may find his real name is [[NAME 1]]. He responded that his real name is [[NAME 2]].
As noted, after the hearing, the applicant provided to the Tribunal an image of the applicant’s Iranian birth certificate and an accredited translation which evidences that he had changed his first name from [AH] to [H] and his surname had been changed from [GH] to [G]. There is no indication when this occurred on the birth certificate. No accompanying submission was provided in this regard. I note the reference to his name change in this document also appears in the birth certificate he provided to the Department when he first arrived in Australia in 2010. This evidence appears to suggest the applicant legally shortened his name at some point when he was in Iran.
I have also given consideration to evidence the applicant provided during the IMR interview where he told the decision-maker that he had shortened his last name from [GH] to [G]. Further, in the 2013 Ministerial Intervention request, it also submitted that the applicant had shortened his last name from [GH] to [G].
The applicant provided to the Department different documents revealing his name as [[NAME 2]] such as the certificate of a [course] in 1995. As noted, on 15 July 2015, the applicant provided certified translations of the Iranian national identity card and military exemption card which indicated his name as [[NAME 2]]. I note the translation of his military exemption card indicates it was issued in 1993. The national identity card did not indicate an issue date but indicated that it was to expire in 2011. Country information before me indicates there are two versions of these identity cards, a new electronic version with a computer chip and one older version with a barcode The new cards were issued in 2012 so the applicant’s card is the older version.[1] Country information published in 2011 indicates these older cards were valid for seven years, indicating the applicant’s card was likely issued in 2004.[2] I note the translation of the driver’s licence he provided in the name [[NAME 1]] was issued in 2008. This would suggest the possibility the applicant changed his name between 2004 and 2008 and it is possible that none of the identity documents he provided were in fact false documents, despite his claims during the ITOA process that they were. I consider he provided that narrative to enhance his claims at that time given his claims for protection had been previously rejected. As noted, during Tribunal hearing, although he had said his passport, in the name [[NAME 1]] was false, he could not recall how he left Iran and I have given consideration to his mental health in assessing his oral evidence and have given little weight to this assertion. Further, since that hearing he provided his Iranian birth certificate reflecting he had legally changed his name at some point when he was in Iran, and I give more weight to this evidence than his oral evidence.
[1] 'Iran: Passports, ID and civil status documents', Landinfo, 5 January 2021, 20210128115803
[2] 'Iranian national identity card', Irfamily, Irfamily, 11 June 2011, CISD9559B12436
On the evidence before me I am not satisfied that the Iranian identity documents the applicant first provided to the Department when he arrived in Australia in 2010 were false documents. I am satisfied the documents he has provided with different names merely reflects that he had changed his name in Iran, as evidenced in the Iranian birth certificate he provided to the Department when he first arrived in Australia in 2010.
On the evidence before me and having considered the Iranian identity documents the applicant has provided to the Department and Tribunal, I am satisfied that the applicant is a national of Iran and that Iran is the receiving country for the purpose of this assessment. There is no evidence before me to indicate he has the current right to enter and reside in any other country.
The applicant has always claimed that he was born in [City 1] in the Khuzestan Province of Iran and that his date of birth was [Date 1]. I accept that is the case.
During the ITOA interview, the applicant also stated that Arabs were discriminated against in Ahwaz and that his father was a Persian, but his mother was an Arab. However, prior to that, in information he provided to the Department, he indicated he was of Persian ethnicity. In his SHEV application he also claimed to be of Persian ethnicity. During the l hearing he also said he was of Persian ethnicity and that both his parents were Persian. On the evidence before me, I am satisfied he is of Persian ethnicity.
Political activities in Australia
According to the delegate’s decision, the applicant did not submit any documentary evidence of his political activities in Australia during previous Departmental assessments of his claims nor with his SHEV application. Neither did the applicant respond to the Department’s letter concerning such evidence. To verify the applicant’s claims, the delegate visited his [social media] account and noted the account was opened in 2011. From 2011 till 2013, the applicant posted only his own portrait photographs. From 2014 till February 2019, his account contained a single [post]. Then, from 11 February 2019, the applicant started re-posting large numbers of items containing criticism of the Iranian government and clergy, videos from protest demonstrations all over the world, reports of human rights abuses, accusations of government officials’ corruption, political cartoons, and the like. The delegate noted the re-posts had since continued on a nearly daily basis reaching up to 30 items on some days. Nevertheless, the delegate observed that all these items were derived from other sources; none of them contained the applicant’s personal opinion or comments. The delegate noted the applicant had not posted any photos or materials on his own. The delegate noted that the applicant became active on social media only after being invited to attend a SHEV interview as the interview invitation was sent on 22 January 2019, and his social media activism started on 11 February 2019.
During the hearing, the applicant claimed he had attended protests in Sydney against the Iranian regime and Islam when his health permitted him. He said he developed his opinion against the Iranian regime a long time ago in Iran, but he could not do much in Iran as he would have been arrested. He could not recall when he attended these protests in Sydney but had not attended any this year. As noted, the applicant provided to the Tribunal a video of him attending a protest in Sydney which appears to be against the Iranian government. The video is not dated, and no submissions have been provided to indicate when it was. But I noted an image of ‘Mahsa Amini’ on one of the placards and country information indicated her death in Iran sparked nation-wide protests in September 2022.[3] So I find it was likely a protest that has occurred in recent years. Other photos of the applicant attending a protest were provided which appear to be the same protest as in the video.
[3] 'DFAT Country Information Report - Iran', Australian Department of Foreign Affairs and Trade (DFAT), 24 July 2023, 20230724110043 (DFAT 2023 report)
During the hearing, the applicant also claimed to have posted items on his [social media] page against the Iranian regime. He said he had been posting such material for a long time and since he came to Australia. He said he did not post his own material but that he shared or liked other material. He said his [social media] profile was public. I asked if he would show me his [social media] page and he agreed. After looking at his [social media] page I noted to him that it appeared his [social media] profile was locked which may suggest it was not public. He said he did not know, and he did not lock it as he was not that technical. When I asked if his posts had attracted any negative attention, he said no and that he had mainly received positive feedback. He said his family had not been approached by the Iranian authorities because of his political activities in Australia and, if they had, they had not told him.
I noted to him the delegate’s observation of his [social media] page in regard to when he started to post political material on his [social media] page in February 2019 and he said, in Iran, they did not have the internet and he started this activity here. He said perhaps he was scared before that and then later he was indifferent. When I asked when he became indifferent, he said that at the time he was being told by the Department that he had to return to Iran, although he could not recall when that was. He said he was scared and when he overcame his fear, his hate against the Iranian regime increased. I noted to him that in February 2019 his application for protection was still being assessed by the Department, so it was unlikely he was being told he had to depart to Iran by the Department at that time. He said he did not remember.
Although the applicant was unable to tell me when he started participating in protests in Australia, I have considered his memory issues in this regard. Although I share the delegate’s concerns about the timing of the applicant’s social media activity, I, nonetheless, accept that he holds a political opinion against the Iranian regime and accept his explanation that he was too afraid to participate in these activities in Iran which I consider to be plausible. I am prepared to accept that he engaged in this conduct in Australia otherwise than for the sole purpose of strengthening his claim to be a refugee and have not disregarded this conduct in my assessment of whether he has a well-founded fear of persecution in Iran.
Risk of harm on return

During the Tribunal hearing, when I asked the applicant what he feared in relation to returning to Iran, he said he was not sure what will happen to him as he might be accused of spying for foreign countries, and he had been out of Iran for 14 years and he may be accused of activities against the Iranian authorities. He said he has nightmares they will take him away. He said if he is returned to Iran he will be questioned about where he had been and what he had done.
The September 2024 submissions to the AAT submitted that Australia does not have an involuntary return agreement with Iran, however in the event that the applicant would have no choice to return, he is likely to be targeted and harassed, or at the most extreme be interrogated and imprisoned either on arrival or after he returns.
In its most recent report on Iran published in July 2023, the Australian Department of Foreign Affairs and Trade (DFAT 2023 report) stated that protests are relatively common in Iran and can be violent. Up until September 2022, protests were largely driven by economic issues. 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. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They evolved into broader protests against the regime. The government response to protest action had 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. Whilst there were no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. DFAT was aware of harsh sentences being handed to many protesters, including long jail sentences. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. It stated that social media activity reflected ongoing anger against the regime. It noted these were the biggest and longest-running protests in the history of the Islamic Republic and they differed from previous protests in their overt call for social change and the overthrow of the regime. It stated smaller protests continued to occur in 2021 and 2022. It noted the situation was volatile, and arrests and fatalities are possible. DFAT assessed that, in the current climate, ordinary protesters face a moderate risk of arrest and official violence but a low risk of on-going official harassment and discrimination.[4]
[4] Ibid.
Amnesty International reported that in 2023, in the aftermath of the 2022 ‘Woman, Life, Freedom’ uprising, Iranian authorities further suppressed the rights to freedom of expression, association and peaceful assembly, and intensified their crackdown on women and girls defying compulsory veiling laws. They noted that security forces crushed protests using unlawful force and mass arrests. Thousands were subjected to interrogation, arbitrary detention, unjust prosecution, and imprisonment for peacefully exercising their human rights. It noted enforced disappearances, and torture and other ill-treatment were widespread and systematic.[5] Freedom House also reported that in 2023 the Iranian authorities continued a campaign of repression in the wake of the ‘Woman, Life, Freedom’ protest movement, intensifying pressure on dissidents and activists ahead of the one-year anniversary in September.[6]
[5] 'State of the Worlds Human Rights 2024', Amnesty International, 23 April 2024, 20240424131540
[6] 'Freedom in the World 2024 - Iran', Freedom House, 29 February 2024, 20240301081155
Other recent country information before me indicates that, because Iranian regime officials view opposition groups and individuals as an existential threat to the Islamic Republic, repressing dissidents abroad is a primary goal of Iran’s intelligence agencies. Since the start of the Mahsa Amini protests in the autumn of 2022, threat levels against Iranian diaspora members had increased.[7] It was reported that the Iranian government had continued to engage in acts of transnational repression to intimidate or exact reprisal against individuals outside of the country’s sovereign borders, including against members of diaspora populations such as political opponents, civil society activists, human rights defenders, and journalists. The regime employed a range of tactics to exert pressure on or exact reprisal against individuals located outside the country, including harassment, intimidation, and surveillance, according to multiple non-government organisation (NGO) sources. Norwegian police also warned that the Iranian regime had been engaging in digital surveillance of dissidents in Norway.[8] The September 2024 submissions to the AAT cited media articles published between 2022 and 2023 reporting that the Australian Federal Police (AFP) and New South Wales (NSW) Police were investigating reports of intimidation against Iranians in Australia.[9] A report by the Sydney Morning Herald also reported that a mother of an Australian protester was jailed in Iran as a result of her daughter’s protest activity in Australia.[10] The Australian Broadcasting Corporation (ABC) also reported another instance where the sister of an Australian protester was arrested in Iran.[11] In a submission to a Senate inquiry, DFAT also said it was aware of reports that pro-Iranian government informants are surveilling former Iranian residents protesting against the regime in Australia and threatening their relatives in Iran as a result.[12]
[7] 'Iran: Treatment by the authorities of family members of dissidents residing abroad', Office of the Commission General for Refugees and Stateless Persons (Belgium), 16 October 2024, 20241021105004
[8] 'Country Reports on Human Rights Practices for 2023 - Iran', US Department of State, 20 April 2024, 20240423140449
[9] R. Yosufzai and S.Tomevska, ‘Nos is a vocal critic of Iran's regime. She fears Iranian agents have targeted
[10] P. Sakkal, ‘Silencing dissent by threatening family: Iran cracks down on family of Australian protester’, The
[11] R. Brown and M. Fazal, ‘Activists say Iran regime targeting families of Australian protesters’, ABC News (Australia), 4 February 2023, available at
[12] D. Hurst, “Australia foils Iran surveillance plot and vows to bring foreign interference ‘into the light’”, The Guardian (Australia), 14 February 2023, available at
DFAT’s 2023 report noted that the Iranian Government has a longstanding policy of not accepting involuntary returns. It stated voluntary returns are possible and are sometimes assisted by returning governments or the International Organization for Migration (IOM). In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. It noted, in general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. It stated Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. It stated those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, however, may take longer if the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. It stated arrest and mistreatment are not common during this process. DFAT assessed that, unless they were the subject of adverse official attention prior to departing Iran (e.g., for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment, or other forms of official discrimination.[13]
[13] DFAT 2023 report
Having considered the above country information, I am satisfied on the evidence that, if the applicant were to return to Iran, it would only be on a voluntary basis. The applicant no longer has his Iranian passport. The above country information indicates he would likely travel to Iran on a laissez-passer. As such I am satisfied there is a real chance he will be questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of his departure and why he was traveling on a laissez-passer. Having considered the applicant’s mental health condition and the medical evidence provided and my own observations of him at the hearing, I am satisfied there is a real chance he will develop a severe stress reaction to these circumstances. I am satisfied there is a real chance this will manifest in him providing confusing and evasive answers to the questions put to him by the Immigration Police. Given the country information above, which states that such interviews may take longer if the returnee is considered evasive in their answers, I am satisfied there is a real chance his interview will be prolonged. In the circumstances where the applicant is returning from Australia after being outside the country for 14 years and the current political climate in Iran and its current monitoring of its overseas diaspora for political activities against the Iranian regime, including in Australia, I am satisfied there is a real chance these factors combined with his evasiveness and confused answers will lead to suspicion and the applicant will be further questioned about his life and circumstances in Australia. I am satisfied there is a real chance this may lead to questions as to whether he had been involved any activities against the Iranian regime in Australia. Given his mental health condition and stress reaction to such scenarios, I am satisfied that under such circumstances, and, faced with such pressure, that there is also a small, but real chance, he will eventually disclose that he had applied for asylum in Australia and had been involved in political activities against the Iranian government whilst in Australia.
DFAT and other recent sources have indicated, in the current climate in Iran, ordinary protesters face a moderate risk of arrest and official violence and that there had been an intensification of pressure against dissidents. Although I am satisfied the applicant does not have a high profile as a protestor such as those in the diaspora that have been targeted by the Iranian authorities to date, nor has he yet attracted the attention of the Iranian authorities, I, nonetheless, am satisfied that, if he was to disclose his overseas political activities during this interview on return, there is more than a remote chance he will be arrested and detained for further questioning.
International human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. Political prisoners are at particular risk of torture, especially those held in pre-trial detention, as torture may be used to extract confessions. human rights groups allege that arbitrary arrest is common, particularly against ethnic and religious minorities, activists, journalists and their lawyers and families.[14]
[14] DFAT 2023 report
Having considered the above information, I am satisfied there is real chance the applicant will be subjected to torture in detention during his detention and questioning. I am satisfied that such harm would amount to a threat to his liberty, significant physical harassment and significant physical ill-treatment and would amount to serious harm. I am satisfied that this harm is systematic and discriminatory conduct carried out by the Iranian authorities against political dissidents for the essential and significant reason of their political opinion.
As the harm would be perpetrated by the Iranian authorities who exert tight and effective control over most of Iran’s territory,[15] I consider the real chance of persecution relates to all areas of the receiving country and do not consider there to be effective protection available to the applicant. I also consider that the applicant cannot reasonably be expected to alter or conceal his political beliefs to avoid a real chance of persecution.
[15] Ibid.
I am satisfied the applicant’s fear of persecution on the basis of his political opinion is well-founded.
As I have found that the applicant has a well-founded fear of persecution in respect of his political opinion, I have not considered his other claims for protection.
The applicant meets the requirements of the definition of refugee in s 5H(1).
I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 25 October 2024
Representative: Miss Artoniss Ehsani

ATTACHMENT A - 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). 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 Attachment B.
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 Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B- 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.
…

her in Australia for it’, SBS News (Australia), 11 November 2022, available at

Sydney Morning Herald (Australia), 16 January 2023, available at