1926374 (Refugee)

1926374 (Refugee) [2023] AATA 2391 (12 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Kamran Ghanbari (MARN: 0848517)
CASE NUMBER: 1926374

COUNTRY OF REFERENCE: Iran
MEMBER:Katherine Harvey
DATE:12 May 2023
PLACE OF DECISION: Adelaide
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 12 May 2023 at 5:34pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – apostacy – baptism – fear of torture – fear of death penalty – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 18 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Islamic Republic of Iran (Iran) and is [age] years old. She arrived in Australia [in] December 2016 travelling on an Iranian passport as the holder of a visitor visa.
On 28 March 2017, the applicant applied for a protection visa.
On 18 September 2019, a delegate of the Minister refused to grant the visa.
The review application
On 19 September 2019, the applicant applied for a review of that decision. She provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 28 October 2019, the applicant’s representative provided:
·   a 12-page submission dated 14 October 2019 responding to the delegate’s findings
·   a letter from [Pastor A], Pastor of [Church 1] dated 23 August 2019 about the applicant’s participation in the congregation, and
·   a letter from [Pastor B] from [Church 2] dated 23 August 2019 about the applicant’s participation in the congregation.
On 25 February 2021, a statutory declaration dated 25 February 2021 from [Partner A], the holder of a [specified] visa, was submitted in support of his partner, the applicant, with copies of his and the applicant’s South Australian driver’s licences.
On 10 March 2021, the following documents were submitted online:
·   a letter from [Pastor A], Pastor of [Church 1] dated 28 February 2021 about the applicant’s participation in the congregation
·   a letter from [Pastor B] from [Church 2] dated 28 February 2021 about the applicant’s participation in the congregation
·   a letter dated 3 March 2021 from [name], [position], [Employer 1] about the applicant’s employment over the previous three years, and
·   a letter dated 4 March 2021 from [name], [position], [Employer 2] about the applicant’s employment since 10 August 2020.
On 3 April 2023, the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 May 2023 and to provide all documents that she intended to rely upon to support her case by 24 April 2023.
On 17 April 2023, the applicant’s representative submitted the hearing response and a letter from [Pastor B] from [Church 3] in [Town 1] dated 11 April 2023 in support of the applicant.
On 27 April 2023, the applicant’s representative submitted a three-page statutory declaration dated 27 April 2023 from the applicant.
The applicant appeared before the Tribunal on 1 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The applicant’s partner and sister attended the hearing as support people. The applicant was anxious during the hearing and breaks were taken as required. The Tribunal hearing was conducted largely in English with the assistance of an interpreter in the Persian and English languages at the applicant’s discretion. She said that she understood the interpreter. Evidence provided at the hearing is referred to in the findings below. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was represented in relation to the review by her registered migration agent and her representative attended the hearing.
At the end of the hearing, the representative submitted documents about the applicant’s sister’s health.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if she is owed complementary protection, or if she is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Background
The applicant’s personal details were set out in her application for protection. She is [age] years old and was born in the town of Esfahan, Iran. At the time she made her application, she stated that she was single, she had a [Qualification 1] and that she had worked as [an occupation 1] in a [business 1].
In her application, the applicant provided details about her (now late) father, [specified family members] in Iran and her Australian-citizen sister and (then) brother-in-law who live in Australia. At the hearing, the applicant explained that her father died in February 2021.
In documents relating to her appeal of the delegate’s decision, the applicant provided information about her current partner, an Australian resident, and her employment as [an occupation 2] in two [business 1s]. At the hearing, she explained that she had completed a [Qualification 2], was studying a [further qualification] and she then wanted to study [further in this field].
Country of reference
The applicant claims that she was born in Esfahan in Iran and is a citizen of Iran. She provided a copy of the biodata page from her Iranian passport.
The Tribunal is satisfied that the applicant is a citizen of Iran and that Iran is the receiving country for the purpose of s 36(2)(aa) of the Act.
The applicant claims that she does not hold citizenship of another country or have the right to enter and reside in another country. Based on the evidence before it, the Tribunal finds that s 36(3) does not apply to the applicant.
Summary of claims
The applicant’s claims are set out in the application for a protection visa.
She claimed that she has turned to Christianity and, because of the radical religious laws of Iran, there is a death penalty for anyone who changes religion from Islam to another.
She claimed that she came to Australia to visit her sister and have a time to rest.
She claimed that there is the death penalty for anyone who changes religion and is seeking a new faith, and there are heaps of reported hangings and torturing of people who changed their religion from Islam to another religion.
She claimed that she would be unsafe in any city in Iran.
She claimed that torture and death are waiting for her or anyone who changes religion.
She claimed that the authorities could not and would not protect her because they are the cause of the problem and that, because the problem is the government, nowhere is safe.
The applicant provided supporting evidence in her application, including copies of her birth certificate, national identification card, passport, Iranian ‘certificate of clean records’ and her certificate of baptism from [Church 2], dated [in] March 2017.
In her statutory declaration dated 27 April 2023, the applicant maintained her claim that she feared returning to Iran as a practising Christian.
She claimed that she is deeply fearful of any return to Iran because the regime is currently very opposed to anyone who is known to be an apostate and that they will view her as an apostate because she will not take part in Islamic services or observances in Iran.
She claimed that she will practice her true faith, which will put her in grave danger immediately because her brother is deeply religious and will see that she does not follow that belief. She claimed that he will not accept her change of faith and will make life very difficult for her.
She claimed that she cannot lie about her faith, even if telling the truth puts her in great danger.
She claimed that between her family and the regime, she would be identified as an apostate and arrested, found guilty and punished with a long term of imprisonment or possibly execution.
She claimed it would be wrong to send her back to Iran because there are such clear dangers facing her in Iran.
At the hearing, she also claimed that the authorities are very aggressive towards all women including Muslims and non-Muslims and that she has never trusted the government.
At the end of the hearing, the representative advised that the applicant’s sister has two [medical conditions] and that they are the only two members of their family in Australia. He said they are supportive of each other and, if the applicant moves interstate, her sister will go with her.
Assessment of claims and evidence
The applicant presented in a manner that the Tribunal perceived to be truthful and credible, and her information about how she thought she would be treated as a Christian convert who wished to practice her faith was consistent with the country information.
Is the applicant a Christian?
The applicant claimed that she had converted to Christianity in early 2017. She said that she was passing the church in [Town 2] and heard the music as the Sunday service was beginning on the second week in January 2017. She said she went inside. Her English was not good but she could understand a little bit and her sister was with her and she helped. Also, the service was on a big screen and she could read it. She said that she was not scared to go inside because the doors were open and they were so welcoming. She said at the end of the service, many people came and said you are new, where are you from and invited her for a cup of tea. She said the pastor came and introduced himself.
After that, she started going there just because she liked it. She said she felt so warm, so welcomed. She felt that she was accepted in their society. Little by little, she started asking questions of [Pastor B] about Christianity because she wanted to know more. He gave her a book about Martin Luther. He said this is a good one and try to read it. She found that difficult as it was in English and she read it with a dictionary next to her. She said that [Pastor B] suggested she just come over every Wednesday morning and they can discuss more of everything. She said that she kept going to church and after three months she decided to be baptised.
She said that in Iran, her mother was going to sessions where they were talking about the different ways of believing in God. She said that she attended a couple of them before her mother got sick and passed away, then the applicant came to Australia. She said she liked the way they were talking about it. It was not any force, it was not aggressive. She said when she went to church in Australia and sat down for the whole service, it warmed her heart. She explained that they were talking about no matter what, you are blessed, you are forgiven. Just in that way you are clean and you are not sinful any more. You can be kind to other people. She said it was so interesting for her, she had never heard of this idea in Iran, it was always cry or torture to be forgiven. Here it is just relax, just believe in God and you are forgiven by Jesus, you are not sinful anymore.
The applicant said that she tries to go to church every week, but it has been a bit difficult with her study. She said that she mostly goes to [Church 1] but every two to three months she goes to [Church 2] to see her friends. She said that her friends are all of the people there. She said that she knows there is a new pastor but she could not remember his name.
At the hearing, [Mr A] described [Church 1] as very friendly and he said the congregation was very welcoming, that they always welcome new people and make an effort to talk to them. He has been attending [Church 1] since 1983. He said that people feel at home there. He described the applicant as a very genuine person. He said that he can see that she is searching for answers. He said that he has become quite good friends with the applicant and her sister and said he and the sisters have a very close, good relationship. He said that he met the applicant through her sister and he knows her through church. He said that she came regularly before COVID started and that she still comes.
The Tribunal discussed with the applicant its concerns about the second letter from [Pastor B] dated 28 February 2021, in particular that the letter was not on letterhead and that the wording was identical to his letter of 23 August 2019 except for the addition of the final two-sentence paragraph. The applicant explained that she had received one of the letters by email and she had gone to his office and collected one of them from his secretary. She could not remember which was emailed and which was the hard copy. She said that he had emailed the third letter. The Tribunal notes that [Pastor B] had moved to [Church 3] in NSW in 2022. The applicant said that she was happy for the Tribunal to call him and ask about the letter. The Tribunal is satisfied that [Pastor B] has maintained his support of the applicant in his third letter and in it he attested to her regularly attending [Church 2] during the time he was pastor there.
The Tribunal is satisfied that the applicant has converted to Christianity and is a practising Christian.
Treatment as a Christian convert in Iran
The applicant said that in Iran, the situation is not good and now it is worse than before. She said the government is observing all the people coming from overseas and it is not safe to go there anymore. She said every woman is fighting for their rights and secondly, she converted.
She said that she does not know if her brother will hurt her, because he is her brother, but he could make life very difficult for her. She said that he is a radical Muslim. She said that she could easily be reported and arrested and easily killed by anyone because she cannot lie about her religion, about being a Christian. She said she can be reported as a convert even by her brother, or any friend who just heard it from somewhere else. She said to convert from Islam to other religions is just death and whoever kills you, they do good things, the blood is halal.
The Tribunal asked the applicant about her brother. She said that he is the only son in the family and that he was fully influenced by her maternal uncles. She said that they used to take him everywhere, particularly to the religious congregations. She said that he was very religiously affected and, because of their different opinions about religious issues, they always had clashes. She said it started when she started learning about religion in her secondary education, when she was 12 and her brother was 16.
When asked how the rest of the family responded, she said that her sisters had a problem with him as well because he wanted to control everything as he trained. She said he was trying to control and influence everyone in the family with what he learned from others. She said he tried to make them follow the hijab or dressing codes, early morning prayer, the time to pray and all of the fasting with all of the religious requirements and duties.
She said that her parents had a problem with her brother because her dad was moderate and he was not religious, and her mum was already in conflict with her [brothers]. She said that her brother was fully influenced by her maternal uncle, and her mother was ‘in disagreement’ with the applicant’s brother. The Tribunal asked why her parents would allow her brother to spend time with his maternal uncles if his mother was in conflict with them. She said that her mother could not control her brother and, when there was conflict, he just ran away to the uncles. She said ‘he was not really following my parent’s advice, he was going by whatever he wanted.’
The Tribunal reminded the applicant that she had provided a copy of her decision record to the Tribunal. The Tribunal asked why the applicant was now claiming in her statutory declaration dated 27 April 2023 that her brother was a radical Muslim when she had told the delegate, as recorded in the decision record, that ‘although her family were legally identified as being Muslim they did not practice Islam, attend mosque or adhere to the religious teachings.’ She said that she was scared of her brother. She said that she did not have a lawyer or consultant to help her at the time of the interview to say that no one can do anything to her, and she was not aware that she had to disclose everything and she decided not to disclose. She had earlier explained that her then brother-in-law helped her complete her application as she did not know how to complete the forms and her English was poor (at the time).

The delegate recorded that ‘[t]he applicant stated that only her immediate family members know about her conversion and “no one else”.’ At the hearing, the applicant said that she had told her sisters and her father but not her brother. She said that she does not have any connection with her brother; they always argue. She said that no one sees him. Because of the conflict, she and her sisters stay away from him and no one has contact with him. Her [sisters] in Iran live in different cities to her brother. She said that he does not try and contact her sisters or her. She said that the government has made ‘big conflict in families, especially in my family between my brother and sisters, just because of Islam.’
The Tribunal is satisfied that the applicant has a reasonable explanation about why her claim about her brother was not raised before the primary decision was made. The Tribunal accepts that the applicant has not shared her conversion to Christianity with her brother.
The applicant said that she likes to practice her religion. At the hearing, the Tribunal discussed the country information that people who are not members of recognised churches generally practise in underground house churches[1] and asked the applicant why she could not attend a house church in Iran. She said that you have to know someone and the groups are very careful, they are not allowing other people to enter into their groups or circles. She also said that the house church people are at risk; they are frightened that they themselves are at risk from the authorities. She asked if she went to Iran, should she just practice secretly all her life? She said that she would practice in fear, and it is not fair living in fear. The Tribunal accepts that the applicant would want to practice Christianity if she returned to Iran now or in the foreseeable future.
[1] DFAT, DFAT Country Information Report – Iran, 14 April 2020, 32.
At the hearing, the Tribunal discussed the country information assessment that Christian converts would not face harm if they maintained a low profile, did not openly proselytise and are not otherwise of interest to the authorities.
Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low.[2]
[2] Ibid, 33.
The applicant responded that she was not sure what the source of the information was but she thought it was ‘not really exact’ or ‘based on the fundamental information’. She said that she was ‘fully aware that those people who are converting to a new religion will be arrested, harassed and even killed.’ She said that the authorities are very aggressive towards all women including Muslims and non-Muslims and that it is far worse to have converted to Christianity. She said that she cannot trust the government. She said she was hearing repeatedly in the media that people who do not follow the hijab order are being arrested or killed.
The applicant’s representative pointed out that the applicant has lost her father, who was her main protector, and now she has no one to protect her in the family, given her relationship with her brother.
The Country Information report provides the following information about the use of religiously based charges against Muslim-born converts to Christianity:
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[3]
[3] DFAT Country Information Report IRAN (April 2020) 3.
Does the applicant have a well-founded fear of persecution for a refugee nexus reason?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
On the evidence before it, the Tribunal is satisfied that the applicant fears being persecuted because she is a Christian convert who intends to practice her religion, and the Tribunal is satisfied that there is a real chance that the applicant would be persecuted as a Muslim-born convert to Christianity.
Given the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant returns to Iran now or in the foreseeable future, there is a real chance that she will suffer serious harm and systematic and discriminatory conduct because of her religion.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of her religion.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Iran, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of her religion.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify her behaviour to avoid a real chance of persecution.
The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
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.
Katherine Harvey
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 2391

12 May 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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Jurisdiction