1925892 (Refugee)

[2024] AATA 3664

1925892 (Refugee) [2024] AATA 3664 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Anne Frances O'Donoghue

CASE NUMBER:  1925892

COUNTRY OF REFERENCE:                   Iran

MEMBER:B. Mericourt

DATE:2 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 02 August 2024 at 4:52pm

CATCHWORDS

REFUGEE – protection visa – Iran – religion – conversion to Christianity – attending Erfan Halgheh classes – particular social group – young women – political opinion – political activities in Australia – women’s rights – detention – consumption of alcohol – legal proceedings – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; rr 1.05, 1.12

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 September 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Iran, applied for the visas on 13 March 2017. The delegate refused to grant the visas on the basis that she was not satisfied that the applicants had a well-founded fear of persecution or that there is a real chance they will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if they return to Iran. Nor was the delegate satisfied that there is any real risk the applicants will suffer significant harm as defined in s36(2A) of the Act if they return to Iran

3. The applicants appeared before the Tribunal on 1 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicants were represented in relation to the review and the secondary applicant was accompanied by a support person, her fiancé.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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, 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).

8. 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.

9. 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

10. 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.

    Receiving Country

11. The applicants claim to be citizens of Iran. They provided copies of the bio data pages of their Iranian passports to the Department. The Tribunal accepts that they are citizens of Iran based on the findings made by the Department. The Tribunal finds that Iran is the receiving country for the purpose of assessing their claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

12. The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest they have the right to enter and reside in any country other than their country of nationality.

    BACKGROUND

13. The primary applicant (hereafter referred to as the applicant) is [an age]-year-old married woman who was born in Esfahan, Iran.  Her husband resides in Iran. Her [age]-year-old daughter is the secondary applicant.

14. The applicant completed a [Qualification 1] at [University 1] in [specified year]. She then studied [occupation 1] in [Country 1] for a year in [specified year].  She was employed as [an occupation 1] in [Country 1] in [specified year] and then in Iran from 1998 to January 2012.

15. The applicant travelled extensively from [year] until 2009, both back to Iran from [Country 1] while she was residing there and for holidays to the [several countries].

16. [In] April 2015 the applicants entered Australia as the holders of Student Guardian and Student visas. [In] November 2015 both applicants departed Australia and [in] February 2016 they returned. [In] November 2016 both applicants departed Australia and they returned [in] February 2017. They lodged an application for protection on 13 March 2017.

17. Since her arrival in Australia in 2017 the applicant has worked as [an occupation 1] and [an occupation 2]. She has also been involved as a volunteer with [Agency 1] since 2022.

18. The secondary applicant (henceforth referred to as [Applicant 2]) has lived in Australia for 9 years. She completed high school in Australia and is currently studying a [course] at [University 2] – a [Qualification 2]. She has worked in [several] roles in a variety of companies and was recently made redundant by [Employer 1]. She is currently being interviewed for other work. She is engaged and hopes to marry in the near future. Her partner has been working in [Country 2] for the past 12 months.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issues in this case are whether the applicants have a well-founded fear of persecution if they return to Iran and if so, does they meet the refugee provisions of the Act? If not, do the applicants meet the protection obligations under the complementary provisions of the Act?  

20. The Tribunal has before it the Department’s file relating to the applicant including the applicant’s claims for protection. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following:

    ·the Department’s decision provided to the Tribunal by the applicant on 16 September 2019;

    ·the applicants’ evidence at the Department interview conducted on 5 March 2019;

    ·a written submission from the applicant’s representative provided to the Tribunal on 8 July 2024;

    ·submissions made to the Tribunal on 25 July 2024 which include Statutory Declarations from both applicants dated 23 and 24 July 2024; a medical report from [Psychiatrist A], psychiatrist, regarding the secondary applicant dated 24 June 2024; a support letter from [Ms A] dated 22 July 2024; numerous photographs of the primary applicant at her church, attending protests about the treatment of women in Iran and participating in fund-raising for [Agency 1] (NGO); and screenshots of the applicant’s [social media] pages dated from 2020 to October 2023;

    ·two reports from Pierre Andipatin, Senior Advisor – Risk, Security and  Emergencies, Risk 2 Solution, - Iran Country Profile and Legislative Review – Protection Visa Decision Appeal, both dated July 2024;

    ·the applicants’ evidence at the Tribunal hearing on 1 August 2024;

    ·Department of Foreign Affairs and Trade (DFAT) Country Information Report - Iran, 24 July 2023;

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;

    ·Other relevant country information referred to below.

    Is the secondary applicant dependent on the primary applicant?

21. The Tribunal has considered whether the primary applicant’s daughter is dependent on her. Regulation 1.05(2) states that for a person to be considered a dependent of the applicant he or she must be “wholly or substantially reliant of the applicant for financial, psychological OR physical support”.

22. [Applicant 2] is [age] years old and lives at home with her mother. The medical report provided by the secondary applicant’s psychiatrist, [Psychiatrist A], states that he has diagnosed and treated her for the past 12 months for Post Traumatic Stress Disorder (PTSD), depression, Adult Attention Hyperactivity Disorder (ADHD), autism spectrum disorder (ASD 1) and binge eating disorder (BED). The secondary applicant takes a number of medications and has consultations with her psychiatrist up to twice a week.

23. Based on the evidence before it, the Tribunal is satisfied that the secondary applicant is substantially reliant on the primary applicant psychologically.

24. Accordingly, the Tribunal finds the secondary applicant is a member of the family unit of the primary applicant as defined in Regulation 1.12 and therefore is a member of the same family unit as defined in s5(1) of the Act.

    Applicant’s claims in their written application for protection to the Department

25. The primary applicant claims she will be persecuted for reasons of her gender, religion and political  opinion. The secondary applicant claims she will be harmed for reasons of her membership of a particular social group, that is, women who do not conform to Islamic norms in Iran and her religion. Details are as follows:

    Primary applicant

26. The applicant was married in 1997 to a member and supporter of the National Movement of Iranian Resistance led by Dr Shahpour Bakhtiar, the former Iranian Prime Minister, before the revolution. He was an active political activist while living in [Country 1] where he had been granted a protection visa based on his past political activities.

27. Her husband returned to Iran because his family were under increasing threats to their lives by authorities of the Islamic regime. On his return he was arrested at the airport and jailed until 1996. When they were married the applicant’s husband told her that he was being monitored and denied some of his basic rights and it would be difficult to live with him because of his past political activities.

28. After the death of the applicant’s [Relative A] she turned to spirituality which led her to the teachings of Dr Taheri Erfane Halgheh. She often sat in his classes in Tehran [detail deleted].

29. In 2009 her home was raided at seven in the morning by the Intelligence of Esfahan. They searched her home and took away all her videos, photos and whatever personal things they could find. They took her and her husband to [Location 1] in Esfahan. They released her husband after two days because he had no interest in Erfan Halgheh. However they did threaten that he would go to jail if he did not stop the applicant from attending Erfan Halgheh classes.

30. The applicant was kept in solitary confinement for 10 days where she was interrogated day and night. She was charged with ‘sectism’ and the authorities insisted that she was giving up Islam. Before she was released she was threatened that she and her husband would be detained again if they did anything wrong.

31. During the 2009 post presidential election protests in Iran, the applicant travelled for a short trip to [Country 3]. When she returned, she received a letter from [police] in Esfahan asking her to report to the [Unit 1] of the police. When she attended she was interrogated by an officer who insisted she had attended one of the protests and was a protester. She proved to them she was in [Country 3] on that day by showing them her passport. However, she believed this meant that her family was assumed to attend protests and officials were just looking for an excuse to put her in jail.

32. Due to this pressure the applicant and her family decided to leave Esfahan and moved to Tehran. She started meeting with friends who had also attended Erfan Halgheh classes. One day [a Unit 1] officer told her husband that he should stop the applicant from seeing her friends. This scared the applicant as she realised no one and nowhere was safe for her and she had no privacy. This was when she decided to come to Australia with her daughter so her daughter could get a better education and live in a free country.

33. On their last visit to Iran to visit her mother and husband after a year of being away from them, they were questioned at the airport about what they were doing in Australia and the reason they were staying there. They were also asked if they were in touch with Iranian political opposition groups in Australia. The officer separated the applicant from her daughter and they were questioned separately in different rooms. The applicant was asked questions about Erfan Halgheh supporters in Australia. They released her after asking her to report to the office of [Unit 1]. Her daughter was also questioned in her absence.

34. The applicant and her daughter reported to [Unit 1] where they were again interrogated for a lengthy period about their reasons for going to Australia. They asked the applicant to sign an undertaking not to take part in any political, social or spiritual gatherings while living in Australia.

35. A few days later, after they had returned to their home Tehran, the applicant’s daughter attended a birthday party at a famous restaurant which was raided by the [specified] police. It was a mixed gender party and they had served alcoholic drinks. The police arrested over [estimate] young people including the applicant’s daughter. When the applicant and her husband were informed of their daughters arrest they went to the police who would not give them any information except that their daughter had committed a ‘big’ crime, including participation in a mixed gender party, wearing clothes that were not part of the women’s code of clothing and consumption of alcohol. When they denied their daughter drank alcohol the police officer became furious and shouted at the applicant and her husband.

36. They returned to the police station the next day where they were told their daughter had been sent to the court. They could not find her and were extremely worried about her. They again went to the police station the following day. Finally, after signing an undertaking that their daughter would never attend a party again and paying a very large fine of [amount] rials, their daughter was released because she was a minor. They were told they had to wait until a final court decision was made about their daughter before leaving Iran.

37. The applicant decided they should not wait for the court decision as she was concerned her daughter may receive [number] lashes for drinking or [number] lashes for attending a mixed party with no hijab. In addition her own past involvement in Dr Taheri’s spiritual doctrines and teachings and her husband’s past political activities could affect the outcome of the court decision in respect of her daughter, so they returned to Australia as soon as her husband could get tickets for flights.

    Additional claims provided at the applicant’s interview with the delegate on 5 March 2019

38. At the interview with the Department delegate, the applicant claimed that since she had returned to Australia her husband had received a notice from the authorities asking to explain why his daughter had not attended court in Iran and for reasons of his past political activism. She did not provide a copy of this notice which was written in Persian to the delegate and did not know the date of the notice except that it was a few months ago.

39. The applicant claimed that about 1½ months earlier her husband had appeared to be very stressed and worried and she asked him why he was worried and why he had not been sending them money. He said he had not been able to work and he told her about the notice he had received from the Iranian authorities.

    Applicant’s claims in their statutory declarations dated 23 and 24 July 2024

40. The following is a summary of the applicants’ claims

    Primary applicant

41. The applicant grew up in a wealthy educated family in Esfahan. Her father was [an official 1] and her mother [an occupation 3]. [Details deleted.]

42. Following the revolution in 1979 her family fortunes changed dramatically. Their family land was confiscated and some of her family members were executed. During the Iraq/Iran war other members of her family were killed. The applicant was able to pursue her studies at university and obtained a [Qualification 1]. However, she was not able to pursue her passion for [occupation 1] freely due to the new restrictions on women. Her family were able to send her to [Country 1] to pursue this passion in [year]. She stayed there for 4 years and returned to Iran in 1997. She recalled that on one of her visits home she was detained for ½ a day for having coffee with a male friend.. When she returned to Iran permanently she was married in 1997.

43. The applicant started her spiritual journey after the revolution and she became interested in Dr Taheri’s teachings in Erfan-e-Halgheh (also called Interuniversal Mysticism).

44. The applicant’s apartment was raided by [Unit 1] officers and government forces in 2009 and they confiscated books, DVDs, videos, the computer hard drive, personal files and documents and family photo albums. They took her and her husband to [Location 1] in Esfahan. The applicant was jailed in solitary confinement for 10 days and frequently interrogated by the intelligence services. Eventually, the intensity of these interrogations led her to admit she had renounced Islam resulting in charges of ‘sectism’ and she was ordered to leave Esfahan and abandon her beliefs. At that time she had not actually renounced Islam. She was forced to sign paperwork that she would immediately stop participating in any form of gathering, whether it is religious, political or social. She had to stop buying, reading or keeping any kind of books or information regarding spirituality and stop all communications with other members of her spiritual group. They also threatened her husband. For her family’s safety she stopped everything that would trigger another raid or detention. Nevertheless, they continued to threaten her from time to time and she remained under observation.

1. A little later in 2009, she was detained and interrogated again by the [Esfahan Police] , who accused her of attending and rioting against the government in one of the biggest protests that was related to the presidential election of Mahmood Ahmadi Nejad. They claimed they had a photo of the applicant in her car which they found during the protest. Fortunately she was not in Iran at the time they accused of seeing her at the protests and she had stamps in her passport proving that she was overseas. They let her off with just a warning and threatened that if they found any further evidence of her attending protests in Iran should be sent to the court directly and charged as an active political activist and a threat to the regime.

2. Soon after this incident the family moved to Tehran.

3. In [year], after her daughter had completed high school in Australia and before she started her university degree, the applicant decided to return home to visit her husband and mother as her daughter was very homesick and had not seen her father for some time. They planned to only visit Iran for a few weeks, however the trip turned into 2 to 3 months while she and her husband tried to ensure her daughter’s safety whilst waiting for her daughter’s pending court case related to her attending a mixed gender party. They were eventually able to leave in February 2017. The applicant stated that their ability to leave was more reflective of the arbitrary and unpredictable nature of the Iranian authorities than any indication of safety or lack of interest in her. She believes her daughter will still be prosecuted upon her return as she evaded the court system.

4. The applicant and her daughter have faced numerous interrogations at Iran airport before clearing customs, conducted both individually and jointly regarding their reasons for visiting Iran, their decision to live overseas, the people they planned to meet in Iran, their intentions and the applicant’s husband’s whereabouts. These enquiries often resulted in them being singled out from the line at customs.

5. After the applicants arrived in Australia in February 2017 the applicant’s daughter started attending [Church 1]. She invited the applicant to go with her on one occasion. Towards the end of 2017 the applicant herself started reading the Bible that her daughter’s friend had given to her as a gift. She found it difficult to read in English but found the gospels inspiring.

6. The applicant became friends with a Persian family who used to live in [Suburb 1] and this person introduced her to the [Church 2]. She started attending this church regularly in October 2019 as Bible studies were conducted in Farsi. Both she and her daughter converted to Christianity and were baptised by immersion [in] January 2020. She attends church on Sundays, study groups and church events and has built relationships with other believers in the church. Every day she does her personal prayers, reads the Bible and tries to put her faith into practice in her daily life.

7. The applicant does not believe she will be able to practice her Christian faith if she returns to Iran as she will be regarded as an apostate under Iranian law, punishable by death.

8. The applicant has also participated in several protests against the IRGC since her arrival in Australia, particularly after she saw what was happening to other young people and women in general in Iran especially those who are similar to her daughter such as Mahsa Amini. Due to a work injury and subsequent [surgery] she was unable to attend all the protests she had hoped to join but since October 2022 she has attended protests that were part of the “[Movement 1]”. She attended protests on [specified dates at specified locations]. The applicant believes that the Iranian government will be aware of her protest activities in Australia and that it would be likely she will be detained if she returns to Iran for reasons related to her political activities, in addition to her conversion to Christianity.

9. In addition, during the protests against the brutalities of the Iranian government, the applicant helped [Pastor A] to share the gospel.

   [Applicant 2]

10. [Applicant 2] stated that as she was growing up she became outspoken and could not remain silent about the injustices faced by women and lack of women’s rights in Iran. However, she did not have the space to speak out against such restrictions and injustices against women in Iran

11. [Applicant 2] said she has poor mental health especially after the incident in Iran. The last time they entered Iran in December 2016 they were held at passport control and sent to a separate room to be interrogated. They were mainly asked about what they did in Australia and why they had returned to Iran.

12. When her trip was coming to an end she decided to attend a birthday party and say farewell to her friends. This was a mixed gender party and the morality police conducted a raid with weapons resulting in the arrest of everyone present. One of the officers aimed his large gun at her and said he would shoot her if she did not sit down. They swore at her and others calling them whores and accusing them of not following Islam - labelling them as sinners. A few of the guys tried to act like heroes and talked back, which led to the officer slapping them in front of [Applicant 2], swearing at them and aiming their guns at them to intimidate them. The applicant was only [age] years old and her friends were all over the age of 18.

13. They were all transported to an undisclosed location in Tehran. [Applicant 2] managed to inform her father before they confiscated her phone. The morality police then separated the males from females and conducted a strip search. They were also called for a breathalyser test. [Applicant 2] was one of the last ones to be called to the test and to her shock, the officers claimed the test indicated she had a [high] alcohol level. [Applicant 2] insisted she had not touched any alcohol during the night. One of the officers aggressively grabbed her wrist and forced her to sign papers admitting to drinking. This was a completely false statement.

14. Later that night they were all sent to a jail located in the basement of the building with windowless cells. The following afternoon [Applicant 2’s]’s friends were taken one by one, handcuffed with zip ties and removed from the premises. The officers refused to tell them where they were taking them. [Applicant 2] was terrified. Given her status as a minor, her father eventually secured her release the following day. However, her friends faced a judge the next day without legal representation and were transferred to jails outside of Tehran. Her own court date remained uncertain as authorities deliberated on how to proceed with the prosecution of a minor. Her friends spent just over a week in cells with criminals as well as some getting sentenced to [number] lashes for their allegedly consuming alcohol, all without having access to legal representation.

15. [Applicant 2] believes she has not been the same person since the trauma she experienced. She was traumatised for days. Her family was extremely distressed. She felt ashamed and frightened for putting them through this situation. She was especially concerned for her father’s safety as he was a political activist against the Islamic government back in his day. She and her mother attempted to leave Iran immediately after this incident but her father was unable to obtain tickets to Australia until early February. Due to her parent’s political background against the Islamic government and the traumatic incident she endured, her mother made the decision to apply for an onshore protection visa for both of them in March 2017 to ensure their safety.

16. Since returning to Australia, [Applicant 2] has felt a sense of relief that she is no longer forced to wear a hijab and that she is no longer under constant surveillance. She has been grateful for the freedom to not adhere to specific religious beliefs and for the liberty to explore and learn about other religions.

17. At the time of her initial application for protection and her Department interview, [Applicant 2] was still in the early stages of exploring her spiritual beliefs. She was [age] years old when the application was submitted and [age] years old at the time of her interview.

18. In 2016, before she had returned to Iran, she met some of her neighbours at the local gym and swimming pool who had moved to Sydney and lived in her area. They were enrolled at [Church 1] to study a [course]. These friends introduced her to learning about Jesus and reading the Bible. She was invited to attend [Church 1] a few times with them on Sundays and during weekdays in the afternoon. She was given a gift of a Bible from her friends in 2017 when she returned from Iran.

19. [Applicant 2] attended [Church 1] with some of her neighbours from 2017 to 2019. Later, through friends in the Persian community in Sydney she and her mother were introduced to [Church 2] (her current church) with [Pastor A]. They attended regularly and [in] January 2020 they were baptised by immersion.

20. [Applicant 2] attends church regularly to worship and participates in community activities including helping on Sunday afternoons to set up tables for Bible study and attending evening Bible study which is conducted in Farsi. She reads the Bible and prays and shares her faith with others through conversations and by living according to Christian values.

21. [Applicant 2] went on to explain why she felt the [denomination] Christian faith was the right one for her.

22. [Applicant 2] does not believe that she could practice her Christian faith if she returns to Iran. She would also find it very challenging to live under the morality laws that enforce mandatory hijab wearing and other chastity laws which restrict personal freedom for women. Constant pressure to conform to these laws would create significant stress and anxiety and impact hugely on her mental well-being.

23. [Applicant 2] stated that she lives with constant fear of losing her loved ones in Iran and the thought of returning home terrifies her. This constant worry makes her feel anxious and hopeless, trapped in uncertainty.

    Applicant’s claims at the Tribunal hearing

24. The applicant said she was born into a religious Islamic family. Her family struggled with their beliefs after her [Relative A] became so ill (with [a named condition]). The applicant wanted to find reasons for what was happening to her family as she felt lost and frustrated. Her [Relative A] passed away when the applicant was [age] years old (in about 1992) and she had started her spiritual search trying to find answers. She started to learn about Dr Taheri’s practices and beliefs from her research and reading but did not start to attend his classes until about 2008.

25. The applicant had a student visa in [Country 1] for five years in the 1990s but only stayed for 4 years as she was very homesick. On one of her visits back to Iran she was detained for ½ day for having a coffee with a male friend. The other women she was detained with were criminals. She was not allowed to contact her father for quite some time. She was eventually released to her father who had told the authorities he had given his permission for her to meet the man and they may be married one day. She felt the authorities’ strategy was to make her scared so she would not do this sort of thing again.

26. At the time of their marriage the applicant’s husband had his own [business 1]. He had had a childhood in [Country 1] and was always very interested in political events. When he returned to Iran he had been imprisoned for some time and he had only recently been able to get his passport back after it had been confiscated by the authorities. He had been released from jail after he had signed an undertaking to no longer be involved in political activities in Iran. He kept that promise. He still has his own [business 1]. 

27. The applicant said that after her detention and the authorities’ raids on their apartment in 2009 they were told to leave Esfahan in addition to her agreeing not to attend Dr Taheri’s classes. The family initially went to her mother’s house in [a named district] and then moved to an apartment in Tehran in [year] in order for her daughter to attend high school there. In Tehran she tried to do her spiritual research into Erfan-e-Helgheh quietly without attracting attention. She met with friends she knew from before who also had an interest in Erfan-e-Helgheh. Her husband was approached by authorities soon after they moved to Tehran and asked to tell her to stop meeting with others.

28. Initially, the applicant did not have a plan to come to Australia for her daughter’s education, but she and her husband had had a plan for their daughter to study overseas for a very long time  because they were both concerned about conditions in Iran, especially for young women. One day when she was visiting her in-laws in Esfahan she heard about a workshop given by someone about studying in Australia. She had not thought about Australia as a potential place before. The Tribunal asked about whether she had considered [Country 1] as she had lived there for quite a long time and her husband had been educated there. She said that after living in [Country 1] she didn’t like how people were treated very much and it was too expensive and also hard to fit in. Australia seemed to be a much more attractive and peaceful place.

29. When she applied for the visas it took a long time and the paperwork was delayed while her daughter’s English was assessed. Finally, after passing the IELTS test she was allowed to start in Term 2..

30. The applicant’s daughter started her involvement in [Church 1] after their last visit to Iran in 2016/17. Her daughter had made friends with neighbours at the swimming pool in their apartment block. They were members of [Church 1].

31. The applicant said that even in Iran before the revolution, when she was a child, she saw a movie about Jesus which was screened about Xmas time. She remembered being impressed with Jesus’ kindness. She also had a piano teacher who was a Christian when she was a child. She met Armenian Christians in her neighbourhood. So in many ways she was familiar with Christianity before she started actively researching it. She felt it was part of her lifelong spiritual journey.

32. All her life she was interested in how to make her life better, good and true. After her last visit to Iran which she found extremely stressful and traumatic, her daughter who was excited and happy about her new friends at [Church 1] showed her her Bible. About a year later she met a friend from her own neighbourhood and discovered she had converted to Christianity. Over a length of time and lots of discussions things came together for her. After her visa was rejected by the Department she and her daughter were extremely traumatised. She called her friend for support. This person suggested she come to a church service with her at [Church 2]. The congregants were mostly Iranian and they were very welcoming. This experience had a real effect on her and she felt connected and that she had found her answers and it “held her heart”.

33. The applicant attends Bible study on Tuesdays and Sundays. Sundays are church services followed by lunch and then a Bible study class in the afternoon. She sometimes cooks food to share at the lunches. She studies the Bible every day – even if only one or two verses and tries to put her faith into practice and be a positive good citizen. She did not take her oath the Bible at the hearing because she believes that Jesus expects people to be honest and not to use a holy book or God’s name to be truthful and cited Matthew 5:33. The applicant had a very well-used Bible at the hearing.

34. The applicant was not involved in protests in Iran because she was scared but she also believed strongly in women’s rights. As [an occupation 1] she was involved in getting the right for women to ride horses and bicycles which was not allowed in Iran at the time (in the 1990s). When she came to Australia she had the freedom to protest and she felt free to do so. She became involved in the [Movement 1] protests she attended in 2022 and 2023. The girl who was detained for not wearing a hijab had special resonance for the applicant as it was the same sort of thing that had happened to her own daughter.

35. There are often gatherings at [a named location] related to events in Iran and she usually attends those. She is not officially involved in any protest groups. She tries to be somewhat discreet as her husband is still in Iran and she is worried about repercussions of her involvement for him. She is aware of a woman who was trying to visit her daughter who is a prominent political activist in Australia, who was arrested at the airport when she was trying to leave Iran.

36. Her husband received two phone calls from the authorities after she and her daughter had left Iran. They had signed an undertaking that her daughter would attend a court. However, they left without doing so. The phone calls were about their daughter’s non-appearance at court but the authorities could not do anything because her daughter had left the country. The calls were reminding them they were under surveillance and authorities know what they are doing. Her husband was not threatened. The applicant does not know what would happen to her husband if he attempted to visit them in Australia.

37. The applicant talks with her husband everyday on WhatsApp because it is encrypted.  Usually, they confine their conversations to day-to-day matters and their daughter. 

38. The applicant said that if she were to return to Iran now 7 or 8 years later she is worried she would suffer significant harm. She has 3 friends who have returned to Iran after getting Australian citizenship who were interrogated at length at the airport and two friends ended up staying two months later than planned due to the authorities keeping them there. She believes the authorities are aware of people’s activities in Australia. She acknowledged that she is not a high-profile political activist. She believes the authorities use low profile people as an example of what may happen to you to create fear in the general population. Young people have been seriously harmed in detention even when they were not actively involved in protests. This is designed to make people “behave”.

39. The other reason the applicant doesn’t want to return is her daughter’s mental health which is precarious. The applicant has been trying hard to provide a happy healthy life for her. In addition, in Iran her daughter could not marry a non-Muslim (her current fiancé).

    Secondary applicant’s evidence

40. [Applicant 2] is studying a [Qualification 2]. She has another 4 years study part-time as she has been working full-time. She is currently looking for work. Some of the jobs are remote-based but she is hoping to get something more technical on a full-time basis.

41. [Applicant 2] is having therapy once a week with her psychiatrist and taking medications. When she has a particularly stressful time (such as the week leading up to the Tribunal hearing) she takes additional medication.

42. [Applicant 2] did not learn about any other religion in school in Iran. When she returned from Iran in 2017 she started exploring other faiths. She was starting university, looking for casual work , missing her father and had experienced major trauma in Iran during her last visit. She started attending [Church 1] initially with her friends who were studying Ministry. It was difficult understanding the Bible in English so she started looking at other churches and other denominations. She attended the [denomination] in the city twice and attended [another denomination] church once. She and her other were then introduced to [Church 2].

43. [Applicant 2] attends [Church 2] on Sundays followed by community lunches and then Bible study with a Farsi translator in the afternoon. On Tuesday nights she attends a Bible study group conducted in English. Once every two months there is a ladies’ night at church which involves different craft activities and discussions about various aspects of Christianity. In her last job at [Employer 1] she sometimes was unable to attend Bible study on Tuesday evenings due to her shift work. [Applicant 2] said that the church here became her second family who supports her in the absence of her family in Iran.

1. [Applicant 2] does not believe she could practice her faith freely in Iran if she returned. She believes that she would have to hide her true self and be “a good Muslim” in Iran. Her faith brings her peace and she would not be able to share her faith in Iran.

2. The applicant met her partner on-line in Australia. He is a Christian. He moved to [Country 2] for his work on a one-year contract. He was present during the hearing and is returning to [Country 2] [in] August to work. They currently have a long-distance relationship.

3. [Applicant 2] speaks to her father using WhatsApp every week. He started exercising to become healthier to help her. She is frightened that things will happen to her family when she can’t be there. He knows about her Christian faith and is supportive of her beliefs. He spent many years in [Country 1] and understands the freedoms she has in Australia. She believes he is sacrificing everything for her.

4. She has been rejected by some friends in Australia due to her conversion to Christianity. She gave an example of a friend / work colleague who is Muslim who attacked her verbally about her faith.

5. [Applicant 2] is also fearful about what would happen as a result of not attending court the last time she was in Iran. She fears that as a woman and because she has attended protests here on-line, she would be harmed by authorities in Iran. She also fears she would be seen as apostate in Iran.

   Assessment of the applicants’ claims and findings

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

7. The applicant’s evidence has largely been very consistent and detailed since lodging her application for protection in March 2017. She has also provided significant documentary evidence regarding her current Christian belief and practice of her faith at [Church 2] since 2019 and also documentary evidence related to her involvement in anti-Iranian regime protests in Australia.  

8. Based on the applicant’s evidence and her supporting evidence the Tribunal accepts the following;

   ·The applicant was a student and follower of Erfan-e-Halgheh in Iran between 2008 and approximately 2010;

   ·She was detained and interrogated in Iran in 2009 as a result of her perceived membership of Erfan-e-Halgheh;

   ·The applicant’s daughter was detained and interrogated by Iranian morality police in  December 2016 for 3 days during her last visit to Iran. She did not attend a court hearing and has not been formally charged with any offence;

   ·The applicant’s daughter started attending [Church 1] in 2017 and was baptised at [Church 2] in January 2020 and is currently a practicing Christian;

   ·The applicant started attending [Church 2] in 2019 and was baptised in January 2020 and is currently a practising Christian;

   ·Both applicants intend to continue their belief and practice of their Christian faith if they were to return to Iran;

   ·The applicant has been publicly involved in a number of anti-Iranian protests in Australia ([Movement 1]), one in 2018, three in 2022 and two in 2023;

   ·Both applicants will find it very challenging to live under the morality laws in Iran that enforce mandatory hijab wearing and other laws which severely restrict personal freedom for women in Iran;

   ·The applicant’s daughter has a number of documented mental health conditions which are exacerbated by her fear of returning to Iran.

   Claims related to the applicants’ religion

9. The Tribunal finds the applicants have converted from Islam to Christianity and the primary applicant was a student of Erfan-e-Halgheh in Iran prior to her arrival in Australia.

   Country information regarding Erfan Hagheh 

10. The Tribunal finds the applicant was a student of Dr Taheri in 2009 and attended gatherings related to Erfan-e-Halgheh and is satisfied that she was detained in 2009 and accused of ‘sectism’. She was released after signing papers stating she would not engage in these activities in the future.

11. Dr Taheri is the founder of Erfan-e-Halgheh, also called Inter-universal Mysticism, a version of Iranian mysticism Irfan. According to Dr Taheri, Erfan-e-Halgheh reveals mysteries of the Quran and of Persian poetry and science and spirituality can converge in a single quest. He also introduced a new healing method which was later called Faradarmani which promotes   mental wellness and physical health. He initially started teaching privately and then in the 2000s founded the Erfan-e-Halgheh (Circle of Mysticism), an arts and culture institute in Tehran. He also taught alternative medicine and alternative therapies at the University of Tehran. The Erfan-e-Halgheh movement became wildly popular in urban centres of Iran and was claimed to have up to 2 million followers.[1] 

    [1] Immigration and Refugee Board of Canada, ‘Responses to Information Requests, IRN104640.E Iran: Situation and treatment of practitioners of Interuniversalism (Erfan Halgheh) (2010-October 2013), 6 November 2013

12. In 2009 the Iranian Revolutionary Guard Corps (IRGC) became alarmed by Dr Taheri’s rising popularity and called it a threat to national security. He was arrested in 2010 on charges of acting against national security. Up until then he had been free to deliver public lectures at the University of Tehran and publish books without restriction. He was held in solitary confinement for 67 days, then released. He was re-arrested in 2011 on charges of Moharebeh (enmity against God). Many of his followers around the city of Esfahan were detained. On 4 May 2011 he was sentenced on charges of “founding a religious cult”.[2] He was detained and then sentenced to death in 2015.[3] He was finally released in April 2019 after both international and Iranian protests.[4] He left Iran and was granted asylum in Canada in March 2020.[5] 

    [2] Ibid

    [3] Erdbrink, T., “Iran Sentences Faith Healing Shiite Mystic to Death”, The New York Times, 28 August 2017

    [4] “ Mohammad Ali Taheri – Religious Minority Practitioner”, Mohammad Ali Taheri - Religious Practice — Iran Prison Atlas (united4iran.org) Accessed 2 August 2024

    [5] US Commission of International Religious Freedom (USCIRF) “USCIRF Religious Prisoner of Conscience, Mr Mohammad Ali Taheri Granted Asylum in Canada”, 16 April 2020

100.   The above information supports the applicant’s evidence regarding the Iranian authorities’ attitude and actions towards Dr Taheri, Erfan-e-Halgheh and its followers. Accordingly, the Tribunal accepts the applicants’ apartment in Esfahan was raided and books and other materials were confiscated and the applicant was directed not to attend Erfan-e-Halgheh gatherings in the future. The Tribunal also accepts that the applicant’s husband was told to stop the applicant from attending such gatherings in Tehran.

Country information regarding conversion to Christianity

101.   The Tribunal is satisfied the applicants have both genuinely converted to Christianity and that they intend to continue to practice their Christian faith in Iran.

102.   Freedom of religion is restricted under the Iranian Constitution. Shia Islam is the official religion with Zoroastrianism, Judaism and Christianity the only recognised non-Muslim faiths in Iran. Recognised religions have the freedom to practice their own religious rites and ceremonies, within the limits of the law.[6] The activities of recognised Christian communities are closely regulated, to guard against proselytisation. Recognised Christian groups refuse to proselytise as a result. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi and perform regular identity checks on worshippers to confirm that non-Christians or converts do not participate in services. Churches that do not comply face closure.[7]

[6] US Department of State (USDOS), “2022 Report on International Religious Freedom: Iran”, 15 May 2023, Executive Summary

[7] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.20

103.   In February 2021, amendments to the Penal Code were signed into law, which criminalise insulting ‘divine religions or Islamic schools of thought’ (Article 499) and committing ‘deviant educational or proselytising activity that contradicts or interferes with the sacred law of Islam’ (Article 500).[8] In 2022, most Christians facing prosecution were charged under the amended Article 500.[9]

[8] US Department of State (USDOS), “2022 Report on International Religious Freedom: Iran”, 15 May 2023, Executive Summary

[9] Open Doors, Christian Solidarity Worldwide, “2023 Annual Report: Rights Violations Against Christians in Iran”, 19 February 2023, p.3

104.   Convictions for apostasy (conversion from Islam to other religions such as Christianity) are possible but rare. Apostasy is not mentioned in the Penal Code. Nevertheless, DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents.[10]

[10] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.21

105.   DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously minded Muslim family backgrounds. Those who convert while outside of Iran and who intend to continue to practice their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[11]

[11] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.21

106.   Based on the Tribunal’s findings that the primary applicant had come to the attention of authorities in Iran in 2009 for her involvement in gatherings of Erfan-e-Halgheh, and the Tribunal’s findings that the applicants are genuine converts from Islam to Christianity who intend to continue to practice their faith, which includes sharing their faith with others, together with the above country information, the Tribunal is satisfied there is a real chance the applicants will suffer serious harm for reasons of their religion.

Claims related to the primary applicant’s involvement in anti-Iranian regime protests in Australia (political opinion)

107.   The Tribunal finds the applicant has publicly engaged in the “[Movement 1]’ protests in Australia in 2022 and 2023, but she did not openly engage in political activities in Iran.

Country information regarding political protests

108.   The Department of Foreign Affairs and Trade (DFAT) reports that protests are relatively common in Iran and can be violent. Up until September 2022, protests were largely driven by economic issues. However 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 the Iranian morality police. The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty.[12]

[12] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.24

109.   The most recent UNHCR Report of the International Fact-Finding Mission in Iran states that the Mission found that State authorities in the Islamic Republic of Iran were responsible for serious human rights violations in connection with the protests that broke out on 16 September 2022. These include unlawful deaths, extra-judicial executions, unnecessary and disproportionate use of force, arbitrary arrests, torture and ill-treatment, rape, and sexual violence, enforced disappearances and gender persecution. Many of these serious violations of human rights amount to crimes against humanity, specifically those of murder, imprisonment, torture, and rape, and also persecution on the grounds of gender, intersecting with ethnicity and religion. These acts were committed as part of a widespread and systematic attack directed against a civilian population, namely women, girls and others expressing support for human rights.[13]

[13] UNHRC Report of the Independent International Fact-Finding Mission on the Islamic Republic of Iran - A/HRC/55/CRP.1, 19 March 2024, p.1

110.   Country information indicates that Iranian authorities have monitored dissidents, activists and protest movements overseas and targeted protest participants on their return to Iran or their family members living in Iran. Iranian intelligence agencies target Iranian dissidents, journalists and activists living overseas and use tactics such as online intimidation and physical stalking against them.[14] Family members of Iranian nationals who participated in anti-government protests abroad (including in Australia) have reportedly been harassed and arrested in Iran in 2022 and 2023.[15] Participants of anti-regime protests in Europe have had their Iranian passports confiscated by authorities on their return to Iran in 2024.[16] In January 2024, the Australian government announced it had disrupted the activities of suspected Iranian intelligence who had conducted surveillance of the home of an Iranian-Australian dissident.[17] Iranians have been subject to adverse treatment, including arrests and imprisonment, following their return to Iran for their online activities whilst abroad, particularly those involving the expression of anti-regime sentiment.[18]

[14] Immigration and Refugee Board of Canada,  ‘Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021–March 2023)', 2 March 2023

[15] '‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester', The Age - Australia, 16 January 2023; 'How the Iranian regime is intimidating and surveilling its former citizens in Australia', Australian Broadcasting Corporation (ABC) (News), 05 November 2022; 'Australia says it busted Iran surveillance op targeting activist', Agence France Presse (AFP) - France, 14 February 2023

[16] 'Crackdown on Diaspora Dissenters: Surge in Passport Seizures at Iranian Airports', IranWire, 20 February 2024

[17] 'Australia 'Concerned' By Iranian Espionage Activities', Iran International Magazine, 16 January 2024

[18] 'The State of Surveillance in Iran’s Cyberspace', Shams, A, Article 19 (United Kingdom), 14 May 2015; 'Freedom on the Net 2014 – Iran', Freedom House (United States), 2 December 2014, p. 12

111.   Based on the Tribunal’s findings and the above country information the Tribunal is satisfied there is a real chance the applicant will suffer serious harm for reasons of her perceived political opinion if she returns to Iran.

Claims of harm for reasons of membership of a particular social group – women

112.   The Tribunal has found that the secondary applicant was detained in 2016 for breaching Iran’s legal and moral codes, that is, attending a mixed gender party where alcohol was served and breaching the dress code for women. The Tribunal is satisfied, given the applicants have renounced Islam and adopted Christianity, and both have lived in Australia for almost 10 years, that they would find Islamic morality laws related to women’s behaviour and the Iranian dress code requiring women to wear the hijab very restrictive and distressing. However, given both the applicants’ fear of the regime, the Tribunal is not satisfied that they would necessarily openly and publicly flout the dress codes for women.

113.   DFAT reports that women face societal and legislative discrimination in Iran.[19] Although the Constitution provides for equal rights for women, a number of legal provisions discriminate against them.[20] Iranian Muslim women may only marry Muslim men.[21] This would clearly have implications for the applicant’s daughter who is currently engaged to a non-Muslim.

[19] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.28

[20] Freedom House, “Freedom in the World 2024 – Iran” 29 February 2024; Human Rights Watch (HRW), “Human Rights Watch World Report 2024, 11 January 2024, pp314-315

[21] Iran Human Rights Documentation Centre (United States), “Gender Inequality and Discrimination: The Case of Iranian Women”, 8 March 2013, p.24

114.   DFAT reports that wearing the hijab is compulsory in Iran. By law, women must have their entire body covered except for face, hands and feet. Morality police patrols in public places increased in 2022. Following the protests and outcry sparked by the death of Mahsa Amini at the hands of the morality police, they withdrew from the streets. The morality police have been disbanded but there is little sign that enforcement of hijab laws has ceased, with authorities using denial of services in banks and shops and airports is one way to ensure compliance.[22]

[22] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.28

115.   On 26 April 2024 the UN Human Rights Office of the High Commissioner received information that uniformed and plainclothes police in Iran are enforcing a violent crackdown throughout the country against women and girls under the country’s strict hijab laws – as well as men supporting them. They have received reports of widespread arrests and harassment of women and girls - many between the ages of 15 and 17. On 21 April 2024, the Tehran head of the Islamic Revolutionary Guard Corps (IRGC) announced the creation of a new body to enforce existing mandatory hijab laws, adding that IRGC members have been trained to do so “in a more serious manner” in public spaces. Reports indicate that hundreds of businesses have been forcibly closed for not enforcing compulsory hijab laws, and surveillance cameras are being used to identify women drivers not complying with the laws. UNHCR is also very concerned that a draft bill on "Supporting the Family by Promoting the Culture of Chastity and Hijab" – which imposes even stricter punishments– is nearing final approval by the Guardian Council. While the latest draft of the bill has not been made public, an earlier version stipulates that those found guilty of violating the mandatory dress code could face up to 10 years’ imprisonment, flogging, and fines. Corporal punishment constitutes a form of cruel, inhuman or degrading treatment or punishment, and any detention, imposed for the exercise of fundamental freedoms, is arbitrary under international law.[23]

[23] United Nations Human Rights Office of the High Commissioner, “Crackdown on Hijab Law”, 26 April 2024, Iran: Crackdown on hijab law | OHCHR Accessed 2 August 2024

116.   DFAT assesses that women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face high risk of official discrimination in the form of arrest, punishment and violence.[24]

[24] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report – Iran, 24 July 2023, p.30

117.   Given the applicants have converted to Christianity and intend to continue to practice their faith in Iran, and the primary applicant’s personal history in Iran and participation in public anti-Iranian regime protests in Australia, and the real chance the applicants may both contravene the current Chastity and hijab laws in Iran, the Tribunal is satisfied that there is a real chance the applicants may suffer serious harm as a consequence of their membership of a particular social group, that is, women who “push Iran’s moral and religious boundaries”.

CONCLUSION

118.   Based on the above findings cumulatively and the country information cited above regarding the conversion from Islam to Christianity, treatment of women and treatment of perceived political dissidents in Iran the Tribunal is satisfied the applicants have a well-founded fear of persecution and there is a real chance they will suffer serious harm if they return to Iran now or in the reasonably foreseeable future.

119. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).

DECISION

120. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

B. Mericourt
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.

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