1930096 (Refugee)

1930096 (Refugee) [2023] AATA 2729 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kourosh Momeni (MARN: 0955242)
CASE NUMBER:  1930096
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE:5 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 05 April 2023 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Baha’i convert – apostasy – convicted in absentia of anti-Islamic behaviour – political opinion – organiser of anti-Iranian government demonstrations – women’s rights activist – arrested and beaten by Basij – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 Immigration and Border Protection on 2 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on 30 September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk she will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 23 October 2019. The applicant provided a copy of the delegate’s decision with her application for review.
As noted above, the applicant provided a copy of the delegate’s decision with her application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 28 March 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
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–5LA, which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 OF Claims and evidence
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Iran she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Claims
The applicant has previously stated to the department that she departed Iran illegally in 2012 and travelled to Australia via [Country 1] and [Country 2]. She stated she is divorced and has a son who is living in Iran with his father, her former husband. She arrived in Australia as an unauthorised maritime arrival (UMA) [in] June 2012. In her visa application dated 30 September 2016, she outlined her claims for leaving Iran and seeking protection as follows (in summary):
·She left Iran because she joined Baha’i faith groups and lived with her boyfriend and the government wanted to punish her, so she needed to leave her country and home.
·If she returns to Iran, she will definitely have 99 lashes for living with her boyfriend and because she was born a Muslim but does not believe and does not follow Islam she fears being convicted and punished for her apostasy which is punishable by death.
The applicant later submitted to the department a submission dated 20 November 2016 in which she conceded that she had provided false information to the department in her initial (first) interview in relation to her departure from Iran. In that regard she explained that she had been misled by the people smuggler who had brought her to Australia from [Country 2] and who had told her to say that they had left Iran via Turkey by land. The applicant in this submission asserted that all other information that she had provided to the department was truthful. In summary and as relevant she claims (in this submission) that she is a mother who has been away from her child since 2012 and cannot return home for these reasons:
·That she had been brought up in a Shia Muslim family, her parents never forced her to follow Islam and she was always free to make personal decisions as to praying or not.
·She states that when she married her ex-husband, she was under pressure from him and his family to follow Islamic laws. She claims her husband used to frequently beat her for ignoring Islamic principles and forced her to pray, fast and recite the Quran. She claims that because of their problems arising from their religious views she and her husband were divorced.
·She got to know her brother’s neighbour, [Mr A], who was a man of Baha’i faith and she became familiar with the Baha’i faith and shared her interest with her friends and a neighbour.
·She claims her neighbour [Ms B] was married to a member of the Iranian Intelligence Agency, and she was informed by the building’s janitor that [Ms B]’s husband had been inquiring about her.
·In May 2012 whilst she was at work, she received a phone call from her building’s janitor who had informed her that the police had gone to her apartment and then told the janitor to inform her that she was to report to the police station within one week.
·She states she never went home and after a short time she left the country and that she does not dare go back home.
·She claims that she had been subjected to harsh treatment by the Basij (religious and morality police) for not adhering to Islamic dress codes. She claims that she had during the 2009 elections attended several protests along with many other Iranians, and that she had once been arrested by the Basij who took her to their station and detained her for hours and beat and tortured her. They took a photograph of her and recorded her personal details and wanted her to sign a form stating that she would not attend such protests.
·After her divorce she formed a relationship with a man called [Mr C] who would stay overnight at her place. After returning from a holiday with [Mr C] she found a letter at her apartment door in which she was accused of being a prostitute and that if she did not cease her relationship she would be reported to the police. After ignoring the letter, she was in 2012 after arriving in Australia informed by her mother that the Iranian courts had convicted her in absentia, and that she had been sentenced to 99 lashes. She was on 28 July 2015 told in a telephone call from her mother that on 2 February 2015 plain clothes police had visited her mother inquiring about her. The officers pushed her mother and entered her home searching for her. The officers told her mother that they knew all about her (applicant) and that she had been in contact with dissidents and that she had been convicted of having an illegal relationship and had been sentenced to 99 lashes. They indicated that her conviction was now more serious because of her offending in Australia. The officers referred to [Social Media 1] videos of the applicant dancing in dance performances that had been posted on the internet from Australia. She was also informed in this phone call that three plain clothes officers had also attended her old apartment.
·The applicant attached a photo purported to be that of a broken window in her mother’s home and medical documents purporting to indicate injuries to her mother’s lumbar spine which she alleges were a result of the police attendance upon her mother as outlined above.
Department interview
The applicant was interviewed by the department on 5 October 2017.
On 12 October 2017 in a post-interview submission the applicant again acknowledged having provided false information about her departure from Iran in her first interview and responded to her interview with the department on 5 October 2017 repeating her claims and responded to questions as to her purported Iranian court verdict (she had previously provided an Iranian document and later a translation of same in which it is recorded that the applicant had been convicted in absentia of an offence of ‘Illegal relationship and suspicious movements and anti-Islamic behaviour’ and sentenced to 99 punitive lashes) and [Social Media 1] posts and photos. The applicant also submitted country information about Iranian court proceedings in absentia and about another asylum seeker having been sentenced to punitive lashes in absentia in Iran.
Delegate’s decision
The delegate’s decision of 2 November 2017 to refuse the protection visa was made on the information before the delegate. The delegate accepted the applicant is a divorced Persian woman and had become disenfranchised with Islam. The applicant was arrested on three occasions by the Basij for breaching Islamic codes of dress and once for participating in a protest in 2009. The delegate accepted that the applicant had been beaten on two of the above occasions when she had been arrested by the Basij. Further it was accepted that she had been in a relationship with a man named [Mr C] who used to stay at her apartment prior to her departure from Iran in 2012. The delegate also accepted that the applicant had received a single complaint letter from her neighbours in relation to her relationship with [Mr C]. The delegate also accepted that upon return to Iran the applicant would be viewed as a failed asylum seeker and the applicant is a person who is affected by website disclosures. However, the delegate did not accept that the applicant had developed an interest in the Baha’i faith or that she had attended any meetings of that faith. The delegate did not accept that the applicant was pursued by the Iranian authorities in relation to her religious interest in the Baha’i faith or that she had been charged, tried and sentenced in absentia in relation to her relationship with [Mr C]. The delegate also did not accept that members of the Iranian authorities visited the applicant’s apartment and her mother’s home in search of the applicant in 2015. The delegate was not satisfied that the applicant was of adverse interest to the Iranian authorities at the time of her departure from Iran or that the Iranian authorities have pursued the applicant or in any way demonstrated an interest in the applicant since her departure from Iran.
The delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 24 February 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Tuesday 28 March 2023 at 9.30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to her application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Pre-hearing submissions
On 16 March 2023 the Tribunal received a typewritten submission dated 10 March 2023 from the applicant together with a series (five) of typed and handwritten personal references attesting to the applicant’s good character and work ethic as a [occupation]. This material was later on 20 March 2023 forwarded to the Tribunal by the applicant’s representative and subject to an email of that date confirming that such material had been delivered electronically to the Tribunal.
In the typed submission under the hand of the applicant she outlined her personal background and repeated her claims and further raised a new claim under the heading of ‘Women, Life, Freedom movement’ in which she stated that:
Since last year, the death of Mahsa Amini a young Iranian girl who was arrested and killed by the Iranian morality police for improper hijab and inappropriate attire cause the biggest challenge to clerical leaders of Iran. The incidence triggered widespread criticism of morality police and lead in formation the biggest anti-government opposition movement which called Women, life, Freedom. This movement has been a turning point in life of me and Iranians all over the world and has given us high hopes that we shall achieve victory in near future.
I have been very active all this time and arranged and organised numerous events and rallies.
The applicant in this submission provided internet addresses identifying postings which confirm her involvement, attendance and organisation of 17 gatherings, assemblies and demonstrations conducted in public in Brisbane and other locations including in front of the Australian Parliament Canberra and the Iranian Embassy Canberra. Additionally, the applicant identified her interview with Iran International Television in which she identifies herself and is so identified by the television interviewer as a leader and organiser of anti-Iranian government demonstrations in support of women’s rights and in response to the death of Mahsa Amini at the hands of the Iranian morality police.
Country information
The Tribunal has taken into account the DFAT Country Information Report Iran, 14 April 2020, as relevant, including the information under the heading of ‘Baha’is’ at 3.59 to 3.63 where it states that:
The Baha’i faith has its roots in 19^th century Persia, and promotes a belief in the unity of God, religion and humanity. Its founder, a nobleman called Baha’u’llah, is considered a prophet by Baha’is. The religion has its current headquarters in Haifa, Israel. Estimates of the number of Baha’is in Iran range from 300,000 to 350,000. Baha’i is not a recognised religion in Iran and its adherents are considered infidels. As such, most Baha’is conceal their faith. It is common for the authorities to condemn the Baha’i, including in official statements. In 2013, Supreme Leader Khamenei issued a fatwa (religious instruction) encouraging Iranians to avoid all dealings with Baha’is.
In 1991, the Supreme Council of the Cultural Revolution issued a determination on ‘the Baha’i question’. This concluded that Baha’i teachings contradicted the tenets of Islam and instructed that its adherents be expelled from schools and denied employment and positions of influence. Thousands of Baha’is have since been dismissed from their jobs and their pensions terminated, and Baha’is have been barred from employment in the public sector; private companies have been pressured to dismiss Baha’i employees; banks have blocked the accounts of Baha’i clients; and some Baha’i businesses have been shut down. As adherents of an unrecognised religion, Baha’is are unable to legally reproduce or distribute religious literature, and known Baha’i religious sites and cemeteries are regularly desecrated or destroyed. Baha’i families are excluded from official recognition of family law matters, including marriages, divorces and custody arrangements.
The authorities also severely restrict Baha’is’ access to higher education. The Ministry of Science, Research and Technology requires universities to exclude Baha’i students from enrolling and to expel them if their religious affiliation becomes known. Baha’is wishing to attend university must therefore supress their religious identity. According to the Special Rapporteur on the situation of human rights in Iran, 17 Baha’i students were expelled from higher education institutions between January and June 2019. Human Rights Watch claims 54 Baha’i students were prevented from registering at universities because of their faith after taking the national entrance exam for the 2018 school year.
The authorities harass, prosecute and imprison Baha’is, including on national security grounds (typically, propaganda against the state). Human rights observers report that nearly 100 Baha’is were arrested in 2018, including in Alborz, Mashhad, Isfahan and Kurdistan provinces. In January 2019, nine Baha’is were reportedly sentenced to a total of 48 years’ prison for ‘membership of the illegal Baha’i community and propaganda against the regime by spreading the Baha’i faith in the society’. In 2008, seven community leaders were handed 10-year prison sentences for ‘disturbing national security’, ‘spreading propaganda against the regime’ and ‘engaging in espionage’. All were released after completing their sentences. More than 20 Baha’is were reportedly arrested in August and September 2018 on unspecified charges. The authorities are known to arrest Baha’is who close their shops on Baha’i religious holidays or keep them open on Muslim religious holidays. The Special Rapporteur on the situation of human rights in Iran claims the Baha’i ‘have suffered from the most egregious forms of repression, persecution and victimization’.
DFAT assesses that Baha’is face a high risk of official and societal discrimination based on their non-recognised status, the hostile rhetoric used against them in official statements and the limits imposed on their employment, education and family law status. Baha’is who are open about their faith and who advocate for the community’s rights face a high risk of arrest and imprisonment.
Under the heading ‘Political Opinion (Actual or Imputed)’, at 3.78 to 3.82, at 3.80 to 3.82 it is reported that:
While public gatherings and marches are permitted by law, and protests do occur, significant restrictions on peaceful protest exist in practice. According to local sources, rules governing public gatherings and marches are applied inconsistently, with groups considered pro-regime routinely issued permits, while those seen as critical experience difficulty in obtaining a permit. For example, during the November 2019 unrest, gatherings of people protesting against the petrol price increase were vilified and put down with force, whereas pro-regime rallies occurred freely and received positive press coverage. The authorities regularly monitor public gatherings, including public entertainment and lectures, student and women’s meetings and protests, labour protests and Friday prayer gatherings.
Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation (see Media). Social media accounts of well-known figures and celebrities attract particular scrutiny (see Artists and Musicians). Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times (see Critics of the State).
Local sources told DFAT that it is common for Iranians to be critical of the government in public places, including supermarkets, shopping malls and taxis. However, people remain cautious about crossing well-understood ‘red lines’, like insulting the Supreme Leader, in their public interactions beyond close family and friends.
Under the heading ‘Political Exile Organisations’, at 3.83 to 3.85, at 3.83 it states that:
The government systematically dismantled opposition political organisations in the years following the Islamic Revolution, notably the Mojahedin-e Khalq Organisation of Iran (MeK, or People’s Mujahedin of Iran in English — also known by the acronym MKO), the National Front, the Freedom Movement and the Toudeh Communist Party. These and other organised groups pursue anti-government activities in exile, as they are outlawed in Iran. For example, the MeK has had its headquarters in France since the early 1980s. Registered political parties within Iran do not have organised relationships with political exile groups.
Under the heading ‘Civil Society Activists/Human Rights Defenders’, at 3.95 to 3.100, at 3.100 it states that:
DFAT assesses that civil society activists and lawyers who work in areas connected to the promotion of human rights, certain social trends or policies, and the environment face a high risk of official discrimination. This may include arrest, monitoring, harassment and travel bans. DFAT assesses that civil society activists and lawyers who challenge the status quo and are perceived to cross ‘red lines’ as defined by the authorities, are critical of the Islamic Republic, its institutions and policies, and who publicise human rights violations, including against ethnic and religious minorities, face a high risk of arrest, prosecution and imprisonment, including on national security grounds. Those individuals or groups with perceived links to the US, the UK or other Western countries often face a higher risk of attracting adverse attention from the authorities.
Under the heading ‘Media’, at 3.107 to 3.119, at 3.115 it states that:
Authorities are sensitive to foreign satellite broadcasting that they deem hostile to the regime. Dozens of Farsi-language television and radio stations broadcast into Iran from abroad, including the US, Europe and the United Arab Emirates. The use of satellite equipment is illegal, and authorities periodically undertake campaigns in which they raid homes, confiscate satellite dishes and fine the owners or installers of the equipment. The importation, production or distribution of satellite equipment carries a fine of between 10 million and 100 million rials (approximately AUD100-1,000 at current market rates), plus confiscation of the equipment. Use of satellite dishes is punishable with a fine of 1 million to 3 million rials (approximately AUD10-30 at current market rates) and confiscation of the dish and associated equipment. Carrying, keeping, installing or repairing satellite dishes and equipment entails a fine of 1 million to 5 million rials (approximately AUD10-50 at current market rates). In practice, satellite dishes are widespread and largely tolerated. According to local sources, while satellite dishes are sometimes confiscated, fines are rare. There are reportedly 8 million satellite dishes in Iran, and up to 85 per cent of the population has access to satellite channels. Authorities engage in regular (but not comprehensive) jamming of foreign satellite signals for viewers in Tehran and other cities, targeting in particular BBC Persian and Iran International. Channels such as BBC Persian can also be accessed via the Internet, using VPNs.
Under the heading ‘Women’, at 3.120 to 3.126, at 3.121 and 3.124 it states that:
Notwithstanding the government’s official commitment to women’s equality, hard-line sharia interpretations and conservative cultural and societal norms continue to limit the extent to which women are able to participate in Iranian society.
Iranian women have gained greater rights to divorce in recent years, and divorce is more common today, particularly in the major cities. Nevertheless, laws pertaining to marriage and divorce are tilted heavily in the favour of men. Article 1133 of the Civil Code stipulates that a man ‘can divorce his wife whenever he wishes to do so’. A woman can obtain a divorce from her husband only with the husband’s permission or if a court determines the husband: cannot provide for his family; has violated the terms of their marriage contract; or is a drug addict, insane or impotent. Men are legally permitted to marry up to two permanent wives in polygamous marriages and an unlimited number in ‘temporary marriages’. Women do not enjoy this right. If a wife refuses to obey her husband without a ‘reasonable excuse’, she can lose certain rights, including the right to maintenance and spousal support. Regardless of age, a woman cannot marry without the permission of her male guardian. In September 2018, authorities arrested two women’s rights defenders who delivered workshops for women on realising equal rights in marriage.
Under the heading ‘Unmarried Couples’ at 3.138 and 3.139, it is reported that:
Close contact between unmarried men and women is illegal, as is being in a de facto relationship. While prohibited by the law and frowned upon by the religious establishment and more conservative Iranians, relations outside of marriage occur in practice. DFAT assesses that there is greater tolerance today for mixed-gender interactions, particularly in the larger cities. DFAT heard anecdotally that so-called ‘white marriages’ – that is, unmarried couples living together in long-term relationships – are common in Tehran. According to local sources, while some landlords may refuse to rent property to couples in such arrangements, others have no qualms. The practice of ‘white marriage’ is less prevalent in rural areas and in cities like Qom and Mashhad, where more conservative social attitudes generally prevail.
The authorities generally tolerate unmarried couples being together in public, particularly in the major cities. Local sources told DFAT that, in Tehran, unmarried couples appearing together in public does not meet societal resistance. In the event of arrest, DFAT understands that an unmarried couple would be taken to the nearest police station and their parents or guardians summoned. Typically, the unmarried couple would sign a written statement and then be released. A fine may be imposed occasionally.
Under the heading ‘Basij Resistance Force’, at 5.4 to 5.6, at 5.4 in part it states that:
The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force that operates under the command of the IRGC. The Basij was established shortly after the Islamic Revolution as an auxiliary law enforcement unit and was brought under the direct command of the IRGC in 2007. The Basij is one of the primary enforcers of internal security and moral codes, including in relation to Islamic dress. The Basij has a countrywide presence, with branches in virtually every Iranian city and town.
Under the heading ‘Exit and Entry Procedures’, at 5.22 to 5.26, it is reported at 5.24 in part that:
The authorities impose travel bans on some Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may be subjected to travel bans.
Under the heading ‘Conditions for Returnees’, at 5.27 to 5.31, at 5.27 and 5.30 to 5.31 it is stated that:
Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

The Tribunal has also considered the Joint report by the Norwegian Country of Information Centre (Landinfo), the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) and the State Secretariat for Migration (SEM), December 2021 Country Report – Iran – Criminal procedures and documents (the Joint report) which provides at page 71 that:
Within a criminal context, judicial and government authorities can issue travel bans against the following persons:
-    A defendant during the investigation or trial procedure
-    A convicted person who has not presented himself for the implementation of sentence or has not served his sentence entirely
-    Tax debtors & other debtors including to banks
Security forces can, in practice, prevent anyone from leaving the country even without an official court decision.
At page 77 of the Joint report at 3.2.4 – ‘Court verdicts in absentia’, it is reported that:
According to article 406 CCP, a court can issue a verdict in absentia if the defendant or his lawyer do not appear in any of the trial sessions, or if they do not present a defence statement. Verdicts in absentia are possible for all types of crimes, except for convictions in hard crimes like e.g fornication, homosexuality.
In Annex 2 of the Joint report (at page 108) an overview of moral offences identifies the following offence:
Article 637 – Illicit relationship between a man and a woman such as touching and kissing – Up to 99 lashes – Morality Police – Criminal Court II
The Tribunal has also taken into account that Iran International Television describes its mission on its webpage to ‘be a window into Iran from the world, and a window from Iran to the world outside’.[1] They state that their promise is to serve and connect 80 million people who live in Iran and the 10 million Iranians living outside the country through their broadcast facilities in London. The service was launched in May 2017 and is described as a mix of rolling news, current affairs and documentaries, sport, lifestyle, health and technology programs, designed to attract a wide audience, especially younger people.[2]
[1] Iran International Television, < Ibid.
In an article by the Iran International Newsroom of 19 February 2023 headed the ‘Relocation Of Iran International Studios to US Draws Global Reactions’ it was reported that:
The announcement by Iran International TV that about shifting studio operations to Washington DC over Islamic Republic’s threats have solicited worldwide reactions.
After a significant escalation in state-backed threats from Iran and advice from the Metropolitan Police, Iran International TV announced February 18 that it has reluctantly closed its London studios and moved broadcasting to Washington DC.
The head of Counter Terrorism Policing (CTP), Assistant Commissioner Matt Jukes in London confirmed that they will continue to work closely with intelligence partners and others to investigate potential threats projected from Iran against a number of UK-based individuals, support those affected and put in place measures to keep them safe, including protective security measures such as an overt armed policing presence focused around the west London offices of the Persian-language media company.[3]
The statement by police included:
“At its sharpest, this has involved police and MI5 working together to foil 15 plots since the start of 2022 to either kidnap or even kill British or UK-based individuals perceived as enemies of the regime…”[4]
Australian senator and shadow assistant foreign minister Claire Chandler tweeted in response to this news that:
“Once again appalled at what the Islamic Republic regime can get away with in western countries. My thoughts are with the @IranIntl staff who have been targeted with these threats.”[5]
[3] Relocation Of Iran International Studios To US Draws Global Reactions (iranintl.com) – <
[4] Ibid.
[5] Ibid.
Review hearing – 28 March 2023
The Tribunal hearing was conducted at the Brisbane Registry with the assistance of an interpreter in the Persian and English languages. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria explained that she had been provided with advice and an explanation of the criteria by her representative and that she understood same.
The applicant confirmed her claims as those that had been outlined in her application, the accompanying documents and the email submissions that she had forwarded to the department and the Tribunal including her new claim which related to her attendance at and organisation of 17 gatherings, assemblies and demonstrations in Australia as outlined above at paragraph 22.
The applicant’s evidence at the hearing was broadly consistent with her claims in the application for the visa and the material that she had previously provided to the department and the Tribunal.
She stated in oral evidence before the Tribunal in summary and as relevant that since arriving in Australia she has found herself a free woman and entered into the community and found a job. She stated that initially after arriving in Brisbane in 2012 she resided in [location] with her sister-in-law and her two children together with one of her brothers, his wife and his child. She explained that she had travelled with her relatives from Iran to Christmas Island via [Country 2]. After being detained at Christmas Island for several weeks and then a further two months in a Darwin detention centre she had been released into community detention. She explained that her brother, his family, her other sister-in-law and her children now all live in Melbourne and have obtained their refugee status.
The applicant told the Tribunal that she now lives with her partner in Brisbane and has done so since 2021. She explained her partner is an Australian citizen and [occupation] and has a son who is [age] years of age. She said her son who is now [age] years of age remains in Iran residing with his father, her former husband. She explained that she was divorced from her husband in Iran about 19 years ago and in or about 2007 he had agreed to a divorce in circumstances where he retained her family’s dowry.
As to her life in Iran the applicant stated that she had worked as a [Occupation 1] after completing the necessary studies. She was married to her husband and it had been an arranged marriage. She explained that her husband and his family were very religious and after their marriage she was told to cease working. Later after her divorce she was unable to return to work as a [Occupation 1] as it was not accepted in Iran for a divorced woman to work. To survive she started work as a [Occupation 2] and operated from her apartment up until 2012 when she came to Australia.
She explained that she had left Iran by air from Tehran using her own passport and travelled to [Country 1] and then onto [Country 2] with other family members in 2012 where they met up with her younger [brother] who had earlier fled Iran.
As to her reason for leaving Iran she explained that her life was hopeless in Iran and that she had no hope of living as an independent woman in Iran as they did not respect women who were divorced, and she did not have any dignity. She further explained that she saw no future for herself, and that the Sharia Law was hurting her all the time. She explained that when she was married and a member of a very religious family she had been forced to pray and go to the mosque and wear the hijab. As she had not been a religious person and did not practise Islam, she was often beaten by her husband due to her failure to adhere to his family’s Islamic views. Although her family had urged her to stay in her marriage she decided to divorce, and to obtain her husband’s consent and his request for the divorce, she had to sign over and leave her family’s dowry. She explained that this process of the divorce took over two years in Iran.
After her divorce she lived by herself and started her [Occupation 2] business which she conducted from her own apartment. She said it was very hard and she had no support from her family or her former husband. It was during this period that a friend of her brothers who had provided some assistance to her family in relation to her father had introduced her to the Baha’i faith. She explained that she and some of her family including her sisters-in-law attended some of the prayer readings and gatherings over a period of several months that had been organised by her brother’s friend [Mr A].
During this period, she said that she had started talking about these prayer meetings as she had found them very calming. She told some of her friends and her neighbours including a neighbour called [Ms B]. She later found out that [Ms B]’s husband was with the Iranian intelligence services. She said that she later received a series of phone calls inquiring about her and that they seemed quite strange. She later received a summons from the court and had been given same by her apartment building’s caretaker who told her that the police had delivered the summons and asked him to tell her that she was to attend the police station. She explained the summons did not give any details other than a date and location for her to attend the police station and introduce herself. The summons only provided the explanation that there was a request to explain some issues.
She said she was worried about the summons and went to her mother’s place for a couple of nights because she thought she was at risk given she had involved herself in the illegal Baha’i faith. She discussed her concerns with her relatives and she and her two sisters-in-law decided that they should leave Iran and join her younger [brother] in [Country 2].
When questioned as to what has since happened to [Mr A] the applicant said she did not know as her brother had moved away and none of her family had had any further contact with [Mr A].
She further explained that around the same time she had a boyfriend and he had been staying with her at her apartment. She said that after she and her boyfriend went on a holiday they found a letter at the door of her apartment when they returned. The letter was from some of her neighbours complaining about her relationship with her boyfriend and threatened to complain to the police about her relationship if she did not terminate that relationship with her boyfriend. She explained she went to the apartment’s building manager and inquired about who would write a letter. She explained that after disregarding the letter and then fleeing Iran because of her fears of being arrested because of her involvement in Baha’i prayer meetings she later received the court verdict document indicating that she had been convicted in absentia by the Iranian courts for an accusation of having an illegal relationship and suspicious movements and anti-Islamic behaviour. She explained that after arriving in Australia her mother had received this verdict and later provided it to the applicant. The verdict recorded the absentia judgement being made [in] 2012 and recorded a sentence to be imposed upon the applicant of 99 punitive lashes.
The applicant explained that her mother had told her that the tenants in her unit had received the court verdict and they had provided it to her mother who in turn forwarded it to the applicant in Australia.
The Tribunal in accordance with the procedure prescribed in s 424AA of the Act raised with the applicant that the translation of the verdict document did not provide an article number of the accusation and that the accusation was recorded in terms that did not appear to be similar to the wording that the Tribunal had found in the Joint report (refer to paragraph 24 above). The Tribunal also highlighted the country information also suggested that morality offences were not offences that were dealt with by the Iranian courts in absentia. As such the Tribunal expressed its concerns as to the authenticity of the purported verdict document. The Tribunal also in accordance with the procedure prescribed in s 424AA of the Act highlighted to the applicant that given the country information indicated that travel bans are often in practice put in place in relation to people who are the subject of investigations or court proceedings, it did not seem plausible that the applicant who was shortly after her departure from Iran convicted in absentia could have earlier departed Iran on her own passport.
After offering the applicant time to consider these matters the applicant told the Tribunal that she had left Iran shortly after having been made aware of the summons for her to attend the police station. Further as to the verdict document it had been received by her family and she did not know about the forms and procedures in relation to the Iranian courts.
The applicant further explained that prior to leaving Iran she had been arrested on three occasions by the Basij. She explained two of those arrests related to her dress: one for incorrect wearing of the hijab and the other for having her pants tucked into her boots. On the other occasion she had been arrested for her involvement in an election demonstration in 2009. As to one of her arrests she explained that she had been detained and forced to sign a written commitment as to her complying with the appropriate Islamic dress and the proper wearing of the hijab. She stated that on one of her arrests she and her sister had been arrested when she was 20 years of age and her sister was 22 years of age. She explained at the time her sister was suffering from cancer and she and her sister were beaten by the police to the extent that her sister was covered in bruises. She said that her sister has since passed away from cancer.
As to her new claim the applicant told the Tribunal that the reason she had become involved in demonstrating and expressing her concerns about the treatment of Iranian women in Iran was because she had enjoyed the freedom in Australia and had felt guilty about her fellow Iranian women and how they live in a limited state of freedom. She explained that she was outraged and greatly saddened when Mahsa Amini was killed for wearing her hair and not preparing her hijab correctly. She explained that it was her understanding that Mahsa had been visiting Tehran not to protest but as a tourist celebrating her country’s culture. After Mahsa’s death at the hands of the morality police she felt it was her duty as an Iranian woman and a woman to raise her voice in support of Iranian women. She explained that she had been involved in and organised over 10 meetings and demonstrations. In particular she had led the organisation of five of these demonstrations and [held a key role] at most of these rallies. She explained that she and a group of other Iranian women organise these rallies via [Social Media 1] and their [Organisation 1], an organisation that has since been registered as a company in Australia, is in the process of seeking registration as a charitable organisation. She explained that she is presently [an office bearer] of the movement, and the movement has a website and a presence on [various social media]. She explained that committee members are not personally identified on these internet sites but many including herself can be identified through the posts that are linked to [Social Media 1] accounts.
She told the Tribunal that in her role with [Organisation 1] she had been interviewed by Iran International Television as to the anti-Iranian government demonstrations and rallies that had been organised and conducted in [Australia] in response to the death of Mahsa Amini.
The Tribunal has considered its obligations to disregard conduct engaged in by the applicant in Australia as so required by s 5J(6) of the Act unless it is satisfied that the applicant engaged in such conduct otherwise than for the purpose of strengthening the applicant’s claim to be a refugee. The Tribunal having heard the applicant’s explanation and assessed such evidence in the context of an in-person hearing before the Tribunal is so satisfied that the applicant did engage in organising and participating in anti-Iranian government rallies and demonstrations together with her participation in media interviews and the formation of [Organisation 1] not for the purpose of strengthening her claim of being a refugee but out of a sense of outrage and a deep personal conviction. The Tribunal is satisfied that this conduct in Australia by the applicant was motivated solely by her desire to support her fellow Iranian women who remain in Iran and to educate and motivate women and men throughout the world to express their outrage at the treatment of women in Iran and to advocate internationally for change.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Iran. She provided a copy of her Iranian driver’s licence, birth certificate and national identity card to the department after earlier having destroyed or disposed of other identity or citizenship documents at the direction of the people smuggler who brought her to Australia by sea from [Country 2]. Based on this material the Tribunal finds that the applicant is who she says she is, and a national of Iran. Iran is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[6] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[7] This is consistent with the established proposition that it is for the applicant to make his or her own case.[8]
[6] Section 5AAA of the Act.
[7] Ibid (with effect from 14 April 2015).
[8] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[10] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[9] Fox v Percy (2003) 214 CLR 118.
[10] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which provides useful guidance for this Tribunal.
[11] SZLVZ v MIAC [2008] FCA 1816 at [25].
[12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[13] UNHCR Handbook, re-issued February 2019 at [203]–[204].
Applicant’s attendance at Baha’i meetings and interest in Baha’i faith
The applicant’s evidence was that she had been brought up in a family where faith had not been imposed upon her and she had been free to adhere to the Islamic faith or make her own decisions as to her faith. The applicant expressed a dislike for the Islamic faith predominantly because of the treatment of women by the Islamic Iranian state and her experience in her arranged marriage where her husband and his family strictly applied Islamic doctrine in the households. The applicant had explained to the Tribunal that she had been forced to pray and to adhere to Islamic dress codes and that she had been beaten by her husband when she had been viewed by him and his family as not adhering to the Islamic faith, traditions and codes of dress. In this regard the Tribunal is satisfied on the evidence before it that the applicant is not a follower of Islam after having formed a view that the religion did not respect women nor provide women with any independence within marriage and the Islamic society generally.
The applicant’s evidence was that after having left the Islamic religion she had met [Mr A] who was a friend or acquaintance of her brother and lived in an apartment complex where her brother had also resided. She explained that [Mr A] had shown kindness and friendship to her family and provided some assistance to her father. It was in this context that she was introduced to the Baha’i faith and she and her sisters-in-law participated in several prayer meetings conducted by [Mr A]. Her evidence was that given the kindness shown by and promoted by members of this faith she had discussed and possibly promoted these ideals to some of her friends and acquaintances including her neighbour [Ms B] whose husband she claims was a member of the Iranian intelligence services. Notwithstanding the country information that indicates that members of the Baha’i faith face a high risk of official and societal discrimination given their non-recognised status and as such face a high risk of arrest and imprisonment the applicant’s involvement in this faith on her own evidence was limited to some discussions about it to her friends and acquaintances and her neighbour.
Noting that it was the applicant’s evidence that she had only attended several prayer meetings held by [Mr A] and that she was unaware as to whether any action has ever been taken by the Iranian authorities against [Mr A] as to his religious beliefs and his conduct at his apartment, the Tribunal does not accept that the purported police summons that was supposedly delivered to her apartment by police commanding her to attend a police station and introduce herself to the authorities for the purpose of her explaining some issues, related to her interest in and limited involvement with the Baha’i faith. Given the applicant had previously been arrested for participating in a demonstration and on two other occasions for failing to adhere to the Islamic dress code and notwithstanding that she had been beaten on two of those occasions she had on the other occasion been released upon signing an undertaking.
For the reasons above, and although the Tribunal accepts that the applicant held a subjective fear of persecution involving serious harm from the Iranian authorities due to her brief interest and involvement in the Baha’i faith, it is not satisfied that she faced and/or faces a real chance of persecution involving serious harm as a result of her transitory involvement in this faith. The Tribunal finds that the applicant left Iran with her relatives in response to a summons from the police that may not have been related to her involvement in this faith and if it did relate to this matter was most unlikely to result in persecution as defined by s 5J of the Act. As such the Tribunal is not satisfied that the applicant’s fear as to persecution arising from her involvement in the Baha’i faith is well-founded.
Applicant’s relationship with her boyfriend [Mr C] whilst divorced and absentia court verdict
The applicant claims that the other or coinciding reason for her leaving Iran and fearing persecution arises from her relationship with her then boyfriend [Mr C] whilst she was a known divorced woman. Given the country information as outlined above at paragraph 23 as to ‘Women’ and ‘Unmarried Couples’ which reports that there is considerable tolerance for such relationships especially in Tehran the Tribunal is not satisfied that the summons to attend the police station that the applicant alleges was served upon her building janitor was as a result of complaints made by some of her neighbours as to her relationship with her boyfriend.
In this regard the applicant also relies upon the verdict document purportedly provided to her after she had arrived in Australia by her mother after she (her mother) had received same from the applicant’s tenants at her apartment. This document records the applicant having been convicted in absentia on 11 October 2012 of the accusation of ‘Illegal relationship and suspicious movements and anti-Islamic behaviour’. With reference to the country information from the Joint report as outlined above at paragraph 24 and noting the inconsistencies contained in this purported verdict document with the relevant country information as to Iranian court procedures and documents, the Tribunal has determined that although it is not satisfied that the document is fraudulent it gives little weight to this document as a result of the uncertainties as to the validity of it.
Again, for the reasons directly above, and although the Tribunal accepts that the applicant held a subjective fear of persecution involving serious harm from the Iranian authorities due to her relationship with her boyfriend whilst she was known as a divorced woman, the Tribunal finds that the applicant left Iran with her relatives in response to a summons from the police that may not have been related to her relationship with her boyfriend either directly or in part and if it did relate to this matter was most unlikely to result in persecution as defined by s 5J of the Act. As such the Tribunal is not satisfied that the applicant’s fear of persecution arising from her then relationship with her boyfriend [Mr C] is well-founded.
New claim – Woman, Life, Freedom Movement and the organising of and participation in anti-Iranian government rallies and demonstrations in Australia in response to the death of Mahsa Amini
The applicant’s evidence was to the effect that whilst in Australia and after the significant international media reporting of the death of the Iranian woman Mahsa Amini who had been arrested and then bashed by the Iranian morality police for the manner in which she was wearing her hijab, she had felt outraged and felt a need to join the international condemnation of this unjustifiable killing. The applicant explained that she and other likeminded Iranian women in Queensland joined together through [Social Media 1] and other social media sites and shared their concerns and desires to support the international condemnation of the Iranian authorities and their ongoing and recent actions of discrimination and violence against women in Iran. She explained that she and others formed and registered the company [Organisation 1] which they used as a vehicle and webpage to organise and coordinate numerous rallies and demonstrations in Brisbane and throughout Australia.
The applicant’s evidence was supported by her reference to various web-based postings and reports of these rallies and demonstrations, which culminated in a [interview] of the applicant as [a member] of [Organisation 1] by the Iran International Television organisation in which she expressed her anti-Iranian government views and those of other members of her organisation and numerous women’s rights groups and movements internationally as to the lack of women’s rights afforded to women in Iran by the Iranian government.
Given the country information above at paragraphs 25 and 26 as to the operations of Iran International Television and the persistent attacks upon this organisation by the Iranian government and supporters of that regime together with obvious interest by the Iranian government as to the issues raised by this service through its stories and presentations that are broadcast throughout Iran, it is implausible that the applicant would not have been personally identified by the Iranian authorities as an active organiser, protestor and media and web influencer as to anti-Iranian government sentiment and as such a significant person of interest by the Iranian security apparatus.
The Tribunal is satisfied that the applicant engaged in this conduct in Australia of promoting anti-Iranian government sentiment and condemning the Iranian government’s overall treatment of women in Iran otherwise than for the purpose of strengthening the applicant’s claim to be a refugee as discussed above at paragraph 46. The Tribunal is satisfied that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of an actual and/or imputed political opinion in all areas of her receiving country, Iran. The Tribunal finds that the applicant’s fears of persecution in this regard are well-founded.
Refugee criterion
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of an actual and/or imputed political opinion in all areas of her receiving country, Iran. The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the Iranian authorities to provide protection to her and as such there are not effective protection measures available to the applicant from the Iranian authorities: s 5J(2). Additionally, on the evidence before it, the Tribunal finds that the applicant cannot reasonably modify her behaviour in Iran as such modification would involve altering her political beliefs and concealing her true political beliefs: s 5J(3)(c)(iii) of the Act.
Therefore, the Tribunal finds that the applicant’s fears of persecution arising from her political views and involvement in the Woman, Life, Freedom Movement are well-founded as required by s 5J of the Act, and therefore, the applicant is a refugee within the definition of s 5H of the Act.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant has a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
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) of the Act.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies
s 36(2)(a) of the Migration Act.
David James
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 2729

5 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice