1925731 (Refugee)

[2023] AATA 1130

1925731 (Refugee) [2023] AATA 1130 (7 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Timothy Gerard Madigan

CASE NUMBER:  1925731

COUNTRY OF REFERENCE:                   Iran

MEMBER:James Lambie

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 February 2023 at 10:45 am (QLD time)

DATE OF WRITTEN RECORD:                17 February 2022

PLACE OF DECISION:  Brisbane

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christian convert – apostate – particular social group – unaccompanied women – women separated from their husbands or male guardians – women who might credibly be accused of committing adultery – relationship out of wedlock – child borne out of wedlock – victim of domestic violence – risk of societal violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), 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 dependant.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 26 March 2019 to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 7 February 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs, on 26 March 2019, to refuse to grant [the first named applicant] and her son protection visas under section 65 of the Migration Act 1958.

4. The applicants, who claim to be citizens of Iran, applied for the visas on 3 August 2018.  [The first applicant] and her son were, in fact, secondary applicants to that application.  However, owing to the breakdown of her relationship with the primary applicant to that application, in circumstances that are described below, I advised [the first applicant], at the initial hearing of this matter, that a separate review application should be brought in her case, and this decision is based upon that separate application.

5. [The first applicant] first appeared before the Tribunal on 10 November 2022, at which time she was invited to apply for an adjournment until aspects of her application could be more comprehensively presented.  She subsequently appeared on 7 February 2023, to provide evidence and give arguments in support of her application.  The Tribunal received oral evidence from her, and the hearing was conducted with the assistance of an interpreter in the Persian and English languages.  [The first applicant] was represented by Mr Madigan in relation to the review.

6. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in subparagraphs 36(2)(a), (aa), (b) or (c): that is, 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.

7. A person is a “refugee” if, in the case of a person who has a nationality, she:

   is outside the country of … her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail … herself of the protection of that country.

8. That is section 5H(1)(a).  Under section 5J(1), a person:

   has a well-founded fear of persecution if:  [she] fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; there is a real chance that … [they] would be persecuted for one or more of [these reasons]; and the real chance of persecution relates to all areas of [the relevant] country.

9. Additional requirements relating to a well-founded fear of persecution, and circumstances in which that person would not be taken to have such a fear, are set out in subsections 5J(2) to (6) and sections 5K to LA, which will be extracted on request.

10. If a person is found not to meet the refugee criterion in subsection 36(2)(a), he or she may nevertheless meet the criterion for the grant of a visa if 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 [she] will suffer significant harm.

11. That is a reference to subsection 36(2)(aa).  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 subsections 36(2A) and (2B).

12. In accordance with ministerial direction number 84, made under section 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.

13. The issue in this case is whether [the first applicant] meets the definition of “refugee” under the Act.  For the following reasons, the Tribunal has determined that the matter should be remitted for reconsideration.

14. [The first applicant’s] claims encompass two separate heads.  First is that, as a convert to Christianity, she would be treated as an apostate on return to Iran, and would be subject to persecution, including possible imprisonment or more serious harm.  The second of those is that, having separated from her husband in late 2019, and having taken up a relationship out of wedlock with another person, and having borne a child out of wedlock to that person, she would be treated as an adulteress on return to Iran, and would be subjected to societal violence and, quite likely, to sanctions at the hands of the Iranian criminal justice system.

15. The evidence available to me in relation to [the first applicant]’s conversion to Christianity is not, with respect, terribly convincing.  She presented no independent evidence from any other person as to her conversion, and there is nothing attesting to her continued membership of the Christian faith or any Christian community from any member of that community or from any leader or minister of religion of a church.

16. However, the evidence that she has presented in relation to her having been subjected to domestic violence, and the circumstances in which she separated from her former husband, and the country information, including the Department of Foreign Affairs country information report on Iran, of 2020, make it quite clear that there are discriminatory attitudes towards women in the Iranian justice system, and that women do not receive equal treatment under the law.

17. The Tribunal notes that authorities, both within the justice system and in the wider community, consider domestic violence to be a private family concern, and there are reports of women being returned to their families by the authorities even after warnings have been given of the dangers of returning.  Further, those resources that exist in Iran to deal with domestic violence tend to focus on reconciling women with their abusive husbands.

18. I also note a report from the US Department of State in its 2021 Human Rights Report that adultery remains punishable by death by stoning.  Although this may be rare, however, there are instances in which women have received death sentences for adultery.

19. In these circumstances, I am satisfied that there is a real risk of serious or significant harm if [the first applicant] returns to Iran.  In making this finding, I extend that concern to all areas of Iran, but in her particular circumstances, given the demonstrated attitude of her former husband’s family, I find that there is an immediate risk to her, in addition to any risk that might arise from the interest of the Iranian criminal justice system.  I am satisfied that the risk that [the first applicant] faces derived from her membership of a particular social group, namely, unaccompanied women, women who are separated from their husbands or male guardians, and women who might credibly be accused of committing adultery.

20. In these circumstances, I am satisfied that [the first applicant] is a person in respect of whom Australia has protection obligations. Therefore, she satisfies the criterion set out in section 36(2)(a).

21. I am also satisfied that the second named applicant is a member of the family unit of [the first applicant], and his application depends on the outcome of [the first applicant]’s application.  It therefore follows that the second named applicant will be entitled to a protection visa, provided the criterion in subparagraph 36(2)(b)(ii) or 36(2)(c)(ii) and the remaining criteria for the visa are met.

22. In the circumstances, the Tribunal remits the matter for consideration, with the following directions: (1) that the first named applicant satisfies section 36(2)(a) of the Migration Act; and secondly, that the other applicant satisfies section 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    DECISION

    James Lambie
    Senior Member