1914004 (Refugee)

1914004 (Refugee) [2023] AATA 3207 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Roya Majd (MARN: 0701239)
CASE NUMBER:  1914004
COUNTRY OF REFERENCE:                   Iran
MEMBER:James Lambie
DATE:24 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 24 July 2023 at 3:36pm
CATCHWORDS
REFUGEE – Protection Visa –Iran – being a woman with the risk of being an imputed apostate – being identified as an environmental activist – risk of being perceived as anti-clerical – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 21 August 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 11 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant, [Ms A], is [age] years old and a national of Iran.
[Ms A] first arrived in Australia on [date] October 2014 as the holder of a subclass TU-573 student visa. She made two departures from Australia, for periods of 10 days and 22 days during 2016, her last arrival being on [date] July 2016. She was granted a subclass TU-500 student visa on 22 December 2016.
[Ms A] applied for the protection visa, the subject of this review, on 21 August 2018. The visa application was refused on 17 May 2019. She applied to the Tribunal for review of that decision on 3 June 2019.
Claims
[Ms A] was born in [Iran], on [date]. She claims she was raised in a practising Muslim family.
[Ms A] claims that, after her father died in April 1999, she started to explore her spirituality. She claims to have met [Mr B] of [a] University, [in] February 2000, who gave her information on meditation, yoga, and healing techniques. She claims that, during this period, she ceased practising Islam and became immersed in meditation techniques.
[Ms A] claims that her meditation inspired her to write poetry and prose, which she published between 2002 to 2004.
[Ms A] claims to have convened meditation meetings in her own apartment from 2003. She claims that, in about late 2004, an official from the Iranian government attended her class a few times and requested one-on-one instruction. She claims to have provided two of these private sessions. She claims that the official subsequently told her that she was being watched and that her un-Islamic teachings would place her in danger. She claims to have received further threatening telephone calls from the official which only ceased in January 2005 when she travelled to [Country 1] for four months.
[Ms A] claims she lived in [Country 1] from 2006 to 2014. She claims she completed a [degree] at [a] University in 2011. She claims that, during this period, she worked with some NGOs, organised [workshops], and also became a teacher in the [Organisation 1], which was founded by [Mr C]. She claims she returned to Iran briefly on three occasions. She claims she last entered Iran in 2010 to renew her [Country 1] visa.
Since arriving in Australia, [Ms A] claims that, in addition to obtaining [degrees], she has been undertaken environmental activism and has continued as a teacher and organiser for the [Organisation 1] organisation. She claims that the books she has published contain material disparaging of Iranian clergy.
[Ms A] claims that she applied for the protection visa after learning in 2017 that the Iranian government had closed all meditation classes and had also been prosecuting environmental activists.
[Ms A] claims that, as a woman, meditation teacher, non-practising Muslim and/or imputed apostate, and environmental activist, she fears persecution by the government of Iran.
Evidence
The Tribunal had a range of material before it, including, relevantly:
·[Ms A]’s protection visa application, which was lodged on 21 August 2018;
·Her identity documents, including certified copies of her Iranian passport, national identity card, birth certificate, marriage certificate, and her Iranian and Queensland drivers’ licences;
·The protection visa decision record, dated 17 May 2019;
·The application for review form, dated 3 June 2019;
·Department of Home Affairs file [number], including material provided by [Ms A] in support of her application;
·Letter of support from [name], [Organisation 1], dated 3 July 2023;
·Excerpt from [Ms A]’s book, “[name]”, translated from Persian to English;
·Letter of support from Associate Professor [name], dated 30 June 2023;
·Letter from [manager], [a] Residential Complex, dated 25 June 2018;
·Journal article, “[name] co-authored by [Ms A];
·Statutory declaration of [name], dated 30 June 2023;
·[Ms A]’s curriculum vitae;
·[Ms A]’s [qualification], [a] University, 28 July 2021;
·[Ms A]’s statutory declaration, dated 11 July 2023; and
·Submissions by [Ms A]’s representative, dated 10 July 2023
Country of reference / receiving country:
[Ms A] claims to be a citizen of Iran. Based on evidence provided to the Department by [Ms A], and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that [Ms A] does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee she must have a well founded fear of persecution in Iran. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Iran. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Iran.
The Tribunal discussed her claims as summarised in the applicant's protection visa application, written claims and the delegate's decision. She confirmed that her claims as so summarised were not in dispute, save as detailed in her statutory declaration. The Tribunal asked the applicant whether the claims in her statutory declaration were accurate and complete. She stated they were and that she did not need to change them.
The Tribunal took [Ms A] to her statutory declaration and discussed her family, religious, and academic background. With respect to her religion, she told the Tribunal that she had been a very observant Muslim until about 2000 when she was introduced to meditation by [Mr B]. From that time, her interest in Muslim religious observation began to decline as her interest in meditation and environmental issues increased. She said that stopped practising Islam completely when she moved to [Country 1] in 2005.
The Tribunal took [Ms A] to her statutory declaration of 6 August 2018 accompanying her protection visa application, in which she detailed her claims to have been subjected to threats and harassment by a government official who had attended her meditation classes in 2004. She confirmed that these claims were correct. The Tribunal asked how she knew that the person was a government official. She said that he had told her he was from [a government agency]. When asked if he had shown any identification documents, she said he had not. The Tribunal took her to her claims (at paragraph 28 of her 2018 statutory declaration) that he threatened to block her chakras with black magic and identified the date of her death using numerology. She said those claims were correct. The Tribunal asked if she had not thought it strange that a government official would use heretical or, at least, extremely unorthodox threats. She said it was a bit strange, but she had heard that the Iranian regime at the time was exploring Russian numerology. The Tribunal asked if it might not have been more effective to threaten arrest and imprisonment for apostasy. She said she found the threats believable. The Tribunal asked if it were possible that this man was not a government official at all, but a crank or a troublemaker or someone with a mental disorder. She said that she believed he was from the government, and perhaps been sent by her sister-in-law’s husband who holds a senior military rank, and who had been unhappy about his son attending her meditation classes. The Tribunal asked whether, given the nature of the threats and the man’s persistence in calling her, it might not be more plausible that the man was a crank or perhaps a stalker. She said she had not considered those possibilities.
[Ms A] told the Tribunal that, although the meditation techniques she teaches do not require practitioners to adopt Hindu beliefs, the [Organisation 1] organisation is associated with Hindu traditions and is viewed with deep suspicion by Iranian religious authorities. She said that because it did not originate in Islam and had a strong spiritual element, teachers in particular would be viewed as apostates.
The Tribunal discussed the books [Ms A] had published and the poetry she claimed would be of interest to the regime or the religious authorities. She told the Tribunal that her work would be perceived as an attack on the clergy, which was viewed more seriously than general political complaints.
[Ms A] told the Tribunal that she also had a long history of environmental activism, including organising self-help programs for women in Iran and [Country 1]. She said that, recently, the Iranian regime had started cracking down on environmental activists, being suspicious that their activities are a front for wider dissent or even for espionage. She said that, as a woman associated with a range of activities and opinions to which the regime is hostile, she fears being arrested and harmed by the authorities.
The Tribunal has had regard to the following country information on Iran:
Women
Notwithstanding the government’s official commitment to women’s equality, hard-line sharia interpretations and conservative cultural and societal norms continue to limit the extent to which women are able to participate in Iranian society. According to the Guardian Council’s interpretation, the constitution prohibits women from serving as Supreme Leader or president, as members of the Assembly of Experts, the Guardian Council or the Expediency Council, or as certain types of judges. The Guardian Council excluded female candidates from running in the 2017 presidential election, and only 6.3 per cent of the candidates in the 2017 city and village council elections were female. Women held 6.5 per cent of seats in parliament as at March 2020. While women are active in the economy, they are significantly under-represented in the labour force. Iran has one of the world’s lowest labour force participation rates for women — according to UNDP figures, only 16.8 per cent of women are in paid employment (compared to 71.2 per cent of men). The World Economic Forum ranks Iran 148th out of 153 countries in its 2020 Global Gender Gap report, including 147th for economic participation and opportunity and 145th for political empowerment.
…
Women are not supposed to mix openly with unmarried or unrelated men. Those caught doing so can be sentenced to up to 99 lashes. Article 550 of the Penal Code stipulates that the value of a woman’s life is half that of a man’s. Likewise, a woman’s testimony in court is half the weight of a man’s.[1]
[1] Department of Foreign Affairs and Trade, Country Information Report: Iran (14 April 2020), p 47
It has also been reported that:
DFAT assesses that women perceived by the authorities to be pushing Iran’s moral boundaries face a high risk of arrest and severe punishment. DFAT assesses women’s rights activists face a high risk of official discrimination. In practice, this includes arrest, arbitrary detention, interrogation, prosecution, imprisonment, monitoring, harassment, smear campaigns and travel bans.[2]
Apostasy and non-practising Muslims/atheists
[2] Department of Home Affairs, Country of Origin Information Services Section, Common Claims: Iran (21 March 2023), p 18 [footnotes omitted]
The most recent DFAT report on Iran states that:
Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.
Blasphemy or ‘swearing at the Prophet’ is similarly an offence that attracts the death penalty. Blasphemy can be against the Prophet Mohammad, Islam’s founding prophet, or his successors or daughter, Fatima. The death penalty is a potential outcome, although can be reduced to whipping if the defendant admits the blasphemy and says that it was a result of drunkenness, anger or quoting someone else.[3]
[3] Department of Foreign Affairs and Trade, Country Information Report: Iran (24 July 2023), p 18
In relation to non-practising Muslims and atheists, DFAT reports that:
In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.
Those who publicly renounce Islam face apostasy charges. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.[4]
Environmental activism
[4] Ibid, p 23

[Ms A]’s representative cited the 2020 DFAT Country Information Report on Iran which, at paragraph 3.99, noted that 63 environmental activists and researchers were arrested in 2018, including nine from the Persian Wildlife Heritage Foundation, Iran’s most prominent environmental NGO. The foundation’s founder died in custody.
DFAT’s most recent report is that:
NGOs must register with, and be approved by, the government. According to local interlocutors in 2019, NGOs that work on non‑political issues such as poverty operate relatively freely. In contrast, the ability of NGOs to work and advocate on human rights‑related issues is severely restricted. NGOs are closely monitored by the authorities and official harassment is not unusual.
NGOs must navigate a changing political climate, which analysts observe has become more conservative following the 2021 Presidential election and against the backdrop of rising protests. What the government considers sensitive can change; the 2021 US Department of State Human Rights Report notes that environmental NGOs have become sensitive in recent times. Civil society organisations have been arbitrarily closed, according to media and human rights reports, and high-profile activists, if they criticise the government or are involved in organisations that the government considers sensitive, face arrest. Sources report such NGOs may apply for re-registration but that it is a cumbersome process.
Human rights defenders face an ongoing risk of arbitrary arrest, detention and prosecution. The risk is particularly acute for prominent human rights lawyers and/or lawyers advocating for their clients in sensitive cases, a number of whom have recently been handed long prison sentences. For example, in April 2023, Iranian activist Golrokh Ebrahimi Iraei was sentenced to seven years in prison and banned from leaving the country for two years on charges of ‘gathering and collusion’ and ‘propaganda against the regime.’
Those activists who are arrested typically face charges such as ‘propaganda against the regime’, ‘insulting the Supreme Leader’ or ‘disrupting national security’. Each of these offences is very serious and long prison sentences or the death penalty may result. Iran Human Rights (IHRNGO, a non-profit human rights organisation) reported over 100 Iranian human rights defenders were arrested, imprisoned, tortured or killed in 2021, more than twice as many as in 2020.
International sources report that authorities have prevented some civil society activists and human rights defenders from travelling abroad; that human rights activists have reported receiving intimidating phone calls, threats of blackmail, online hacking attempts and property damage from unidentified security officials; and that these officials have sometimes harassed or arrested family members of human rights activists.
DFAT assesses that civil society activists and lawyers who work in areas connected to the promotion of human rights, certain social trends or policies, and the environment face a high risk of official discrimination. This may include arrest, monitoring, harassment and travel bans. DFAT assesses that civil society activists and lawyers who challenge the status quo and are perceived to cross ‘red lines’ as defined by the authorities, are critical of the Islamic Republic, its institutions and policies, and who publicise human rights violations, including against ethnic and religious minorities, face a high risk of arrest, prosecution and imprisonment, including on national security grounds. Those individuals or groups with perceived links to the US, the UK or other Western countries often face a higher risk of attracting adverse attention from the authorities.[5]
[5] Ibid, pp 26-27
[Ms A] submitted that the delegate’s decision, in respect of her claims about her meditation teaching, misidentified her as a yoga instructor. She accepts that the practice of yoga, by and large, is tolerated in Iran as a form of physical training. However, her experience is an instructor in meditation techniques and, in particular, the meditation practices of the [Organisation 1] organisation, founded by [Mr C].
There is very limited country information on the views of the Iranian regime to [Organisation 1] meditation. The Tribunal notes that, while Islam has its own meditative traditions, those sects with which those traditions are mostly closely associated with them (such as certain Sufi orders) have been identified as deviant and are subject to suppression, including imprisonment, flogging and internal exile, as well as losing their employment and being banned from universities[6].
[6] Department of Foreign Affairs and Trade (2020), op cit, p 35
[Ms A] cited her becoming aware of the treatment of a movement she described as the Circle of Mysticism in 2017 as being one of the reasons she decided to apply for the protection visa. The information available to the Tribunal is that the movement to which she refers is Erfan-e-Halgheh, which derives from Sufism. It became highly popular in Iran before being suppressed by the authorities from 2010 when its founder, Mohammad Ali Taheri, was sentenced to death on charges of “enmity against God,” “corruption on earth,” and apostasy, and who was later granted asylum in Canada following his release in April 2019. Four female followers of the movement were arrested in 2015, two of whom were imprisoned for “insulting the sanctities”[7].
[7] Wikipedia, “Erfan-e-Halgheh”, accessed 24 July 2023.
The information available to the Tribunal is that [Organisation 1] emerged from [a] Meditation, which was founded by [Mr D]. [Mr C] had been an apprentice of the [Mr D] but split from him to found [Organisation 1] in 1981. It has been described as drawing on Advaita Vedanta traditions and practices, strictly a scholarly tradition of orthodox Hinduism but, more broadly, a popular syncretic tradition blended with a range of other traditions. It describes itself as not limited to any one religion or culture[8].
[8] Wikipedia, “[deleted].
The delegate noted that, while the [Organisation 1] website lists Iran as among the places it is active, it does not provide an address or course offerings. The Tribunal could find no evidence that the organisation is active in Iran.
The Tribunal is not satisfied that the person whom [Ms A] encountered in 2004 was in fact an officer or agent of the Iranian regime and considers it more likely that it was an opportunistic approach by a disordered or troublemaking individual. However, it accepts that [Ms A] believed that the person was acting at the behest of the regime and that this reflects the fact that she was very uneasy about the prospect of her classes coming to the attention of the regime. The Tribunal considers this to be a reasonable concern on her part.
While there is very little country information on the attitude of the Iranian authorities to the [Organisation 1], the Tribunal considers it relevant to [Ms A]’s claims that the [Organisation 1] is clearly derived from Hindu traditions and that Hinduism is not a recognised non-Muslim faith in Iran[9]. Given the action taken against the similar but Islam-derived Erfan-e-Halgheh (see paragraph 43 above) the Tribunal considers that it is at least plausible that [Ms A]’s practice and past teaching of the [Organisation 1] may expose her to a risk of harm in Iran as an imputed apostate.
[9] Department of Foreign Affairs and Trade (2023), op cit, p 18
In view of the country information quoted above, the Tribunal also considers it plausible that [Ms A]’s [qualifications], and her history as an organiser and activist with NGOs and self-help groups may expose her to a risk of harm, either by reason of her activism or to pre-empt it, should she return to Iran.
While the Tribunal does not necessarily accept that [Ms A]’s writings have come to the attention of the regime, it considers that there is a small but plausible risk, should she be the subject of investigation by reason of her history of environmental activism or imputed apostasy, or both, that those writings could exacerbate her risk of harm by reason of her perceived hostility to the Iranian clerical authorities.
Having taken all of [Ms A]’s circumstances into account, the Tribunal is satisfied, given that her account of the events surrounding Erfan-e-Halgheh accords with the available facts, that the delay in making her protection visa application was not unreasonable.
Having taken all of the evidence and the country information into account, the Tribunal is satisfied that [Ms A], by cumulation of her being a woman with the risk of being an imputed apostate and the risk of being identified as an environmental activist, together with the (lesser but plausible) risk of being perceived as anti-clerical, result in a real chance that she will face serious harm if she returned to Iran.
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 remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
James Lambie
Senior Member

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

[2023] AATA 3207

24 July 2023

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Immigration

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