2008603 (Refugee)

2008603 (Refugee) [2023] AATA 2679 (20 April 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Anna Woods
CASE NUMBER:  2008603
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE OF DECISION:  20 April 2023
DATE CORRIGENDUM
SIGNED:15 May 2023
PLACE OF DECISION:  Brisbane
AMENDMENT:  The following corrections are made to the decision:
1.In paragraph 14:
a.“I am an atheist and NX was them” should be “I am an atheist and an ex-Muslim”
b.“Living in as a Zahedan” should be “Living in Zahedan”
c.“and became identity to” should be “and became my identity too.”
d.“was so scared that my father would rate me” should be “was so scared that my father would rape me”
e.“I remember my father is angry” should be “I remember my father as angry”
f.“He was in my first year of university” should be “It was in my first year of university”
g.“take the chance that I will be harm for my beliefs” should be “take the chance that I will be harmed for my beliefs”
h.“in the event I was opened” should be “in the event I was open”
i.“subject to our biased and prejudiced trial” should be “subject to a biased and prejudiced trial”
j.“we call the police” should be “we called the police”
k.“gone to the links he did” should be “gone to the lengths he did”

2.In the quote in paragraph 18, “[Campaign 1]” should be “[Campaign 1 spelling corrected]”
3.In paragraph 19, “(IRGC) known Iran” should be “(IRGC) known in Iran”
4.In the quote in paragraph 23:
a.“[The secondary applicant] employment contract” should be “[The secondary applicant]’s employment contract”
b.“any form of his lamb” should be “any form of Islam”
c.“to campaign with of movement” should potentially be “to campaign with the movement”
d.“[Campaign 1]” should be “[Campaign 1 spelling corrected]”
e.“Participated in the end here are rainy and regime protests” should be “Participated in the Iranian regime protests”

David James
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Anna Woods
CASE NUMBER:  2008603
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE:20 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 20 April 2023 at 3:11pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – atheist – ex-Muslim – apostasy – modification of behaviour – secondary applicant’s new claims and evidence – political opinion – opposition to the Iranian regime’s strict interpretation of Sharia Law and the oppression of women – anti-Iranian government demonstrations and internet posted statements in Australia – purpose other than for strengthening claims – fear of primary applicant’s brother – particular social group – oppose and criticise the Iranian regime’s oppression and treatment of woman – failed asylum seeker – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 Home Affairs on 29 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 12 February 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were refugees as defined by s 5H of the Act and was therefore not satisfied that the applicants are persons 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 applicants being removed to Iran, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 22 May 2020. The applicants provided a copy of the delegate’s decision with their application for review.
As noted above, the applicants provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants protection visas 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 applicants were 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-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.
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 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 applicants have 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 applicants were returned to Iran they 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 applicants will suffer significant harm as defined in s 36(2A) of the Act.
Application for the visa
The primary applicant in the visa application relied upon her statement and representative’s submission as to the primary applicants’ claims for protection. In her statement the primary applicant outlined her background stating in part that:
I am [age] years old. I was born on [date] in Iran and I am also a citizen of that country. My ethnicity is Fars and I have no religion and believe in no God. I am an atheist and NX was them. I and married and I have no children…
…I was born in [year] in the city of Zahedan, Iran. I lived in a small house with my mother and my father, and was the oldest of [number] brothers and sisters. Living in as a Zahedan, religion was the most important aspect of our lives. For most Iranians, religion is not only their culture, but their identity. And for me, growing up in Zahedan, it was somewhat forced upon us, and became identity to…
…My father was a short tempered, abusive man. My memories of my childhood are damaged with physical and mental abuse. My mother was so scared that my father would rate me that she forced me to wear hijab when he was home. I remember my father is angry, all the time, always angry. My father would always find something that one of his children had done wrong, or something he disagreed with. My father questioned everything I did. He questioned the friendships that I made, he questioned the subjects that I studied, he questioned what I decided to make for dinner, he questioned my choice of husband, and he questioned my belief in God…
My father was not a religious man. He didn’t pray, he didn’t fast. He didn’t celebrate any of the religious holidays when our family did and would tease us (the children) when we did…
…When I was 18 years old I began my university studies in [subject]. I remember initially when I started my studies at university, I prayed. I remember praying to God, asking that my father to be forgiven of his abuse and asking God to help my siblings cope. He was in my first year of university that I started to question my belief in God, and what my father had said to me, despite all his abuse, what he said had resonated with me.
… The fact that I can’t express this out loud, I can’t discuss this. I am scared to call myself an atheist in Iran. Simply by labelling myself as such insults people, as by default I dismiss their beliefs as a false. I don’t want to take that chance that someone will find out about my beliefs. I don’t want to take the chance that I will be harm for my beliefs, and I don’t want to conceal my beliefs. My entire life I have been lied to by the people I love and the people I respected, though it is not their fault, and I do not blame them - however, I don’t ever want to live like them again. This is why I left Iran.
If I return to Iran, first of all it should be prefaced by saying I am not suicidal. I am not going to return to Iran and refused to wear a hijab, declaring my atheism to the Basij - primarily because I value my life. It is well-known that irrespective of your religion you are required by law to wear at least a hijab in public, and if I returned I would be required to wear one. I was taught that if I wore my hijab correctly God would give me what I asked for…
.. In the event I do not conceal my religious beliefs, in the event I was opened to both the public and the authorities I would be detained, imprisoned, and put before a religious court. Both my husband and I would undoubtably be subject to our biased and prejudiced trial and sentenced to death for our beliefs and the suggestion we have insulted Islam. After our legal appeals were finalised, the authorities would then tie our hands and legs together, blindfold us and hang us by the neck from separate cranes, raising us in the streets, above the building for our peers to see.
I experienced no physical harm in relation to my beliefs in Iran. I did experience mental harm and repeated harassment in Iran due to my religious beliefs. After we returned from India my husband and I were both staunch in our beliefs. My brother took particular offence to it and became increasingly hostile towards our beliefs and outward expression within the family.
In Iran, the family culture imposes a hierarchy of communication in relation to family matters. My brother was not happy with the way I addressed my religious requirements in Iran. My brother initially brought it up with me, stating that he found the way I dress shameful and my lack of religious beliefs offensive. After I remain firm and refused to change my way, he spoke with our mother about me. My mother defended me initially but she quickly caved to him, agreeing to bring up the issue with me. Again, I remained stubborn in my ways and refused to cave to his demands. Finally he brought it up with my husband, and this only created a further rift between us - my husband infuriated my brother with his intractability and his support of my actions.
My brother became increasingly hostile while we were in Iran, he smashed the windows on our house, vandalised walls and rammed his own car into our car. We call the police, and told them about what my brother was doing (we told them we were not atheist and that we were Muslim - otherwise they would have detained us) and that we required assistance.
I met my brother in court, and even the court was powerless to stop him, in fact supporting his right as my brother, to enforce the correct wearing of my hijab.
I sought help in relation to the harassment I received from my brother. We sought help from the police and we sought help from the courts. We sought help, we concealed the fact that we were atheists and I repeatedly denied the fact that I had previous refused to wear a hijab, however, the court held that my brother wouldn’t have gone to the links he did unless he felt something was wrong with me, my beliefs or those of my husband.
.. There is nowhere in Iran we can live as ex-Muslims. We are functional members of society, whether we go to school and we go to work, one thing is engraved in the culture of workplaces and educational institutions in Iran; Islam. There is no workplace no classroom we are safe or excluded from our religious requirements as ‘Muslims’.
My husband lost his job in Iran because of the suspicions his colleagues had about him. He failed to attend prayer sessions and didn’t fast during Ramadan. They question him about it and he lied about his beliefs, he stated he was just a lazy Muslim. After he continually failed to attend prayer sessions after the confrontation, they fired him.
The primary applicant’s claims for protection are (in summary) as follows:
·She left Iran because she had to conceal her true religious beliefs (atheist, ex-Muslim) from friends, family and the Iranian government.
·She cannot express or discuss her beliefs and is scared to call herself an atheist in Iran. Labelling herself an atheist insults people, and as by default she dismisses their beliefs as false.
·Irrespective of religion a woman is required by law to wear a hijab in public for her the hijab is a symbol of oppression and more personally a symbol of deceit.
·Her brother has demonstrated in the past he is willing to notify the authorities about her lack of enthusiasm for the hijab.
·If she did not conceal her religious beliefs to both the public and the authorities she would be detained, imprisoned, and put before a religious court. She and her husband would be subject to trial and sentenced to death for their beliefs.
·Her brother became increasingly hostile, he smashed the windows on the house, vandalised walls and rammed his car into their car. They called the police and reported her brother. They sought help in relation to her brother’s harassment from the police and the court and they told the police they were not atheist and that they were Muslim, otherwise they would have been detained. The court held that her brother wouldn’t have gone to the lengths he did unless he felt something was wrong with her, her beliefs, or those of her husband.
·She cannot relocate in Iran as an ex-Muslim. There is no workplace or classroom where they are safe or excluded from religious requirements as ‘Muslims’.
·Her husband lost his job in Iran due to the suspicions of his colleagues. He did not attend prayer sessions or fast during Ramadan. He was questioned and lied about his belief stating he was a lazy Muslim. He was fired.
·They cannot live a normal life without modifying their behaviour or concealing their beliefs.
·In the event they are returned to Iran, the authorities would prosecute them and have them sentenced to death.
The applicants provided supporting documents with their application, the primary applicant’s statement and their submission which included; family photographs, including her brother [Mr A] depicting him carrying an automatic rifle and in uniform, GP mental healthcare plan for the primary applicant, psychological assessment for the primary applicant by [Dr B]. Such assessment reported a preliminary diagnosis of Post Traumatic Stress Disorder as a result of anxiety related matters relating to her childhood and in later life her brother, [Mr A].
Department interview
The primary applicant was interviewed by the department on 16 January 2020.
Post interview submission
The primary applicant submitted a post interview submission after seeking an extension of time to do so and provided the Department with an updated statement and supporting documents together with country information (media) reports. In her additional statement the primary applicant discussed Iranian law as to apostasy and provided references to reported (media) incidents of government prosecutions for such conduct. She also stated (as to her husband, the secondary applicant) and them both that:
Now, it is about two years since my spouse is sharing his opinion against the regime on social media through [Social media 1], [Social media 2] and [Social media 3] with our friends and relatives. He has just one mobile number which is known by the reigning embassy in Australia. His [Social media 3]’s profile clearly shows that he is opposed to the regime. Moreover, he participated in a campaign called “[Campaign 1]” by recording a short video that was [disseminated by Media outlet 1] in September 2019. In this video, he is talking about the necessity of the destruction of the regime. This [media outlet] is very popular free to air Persian language general entertainment [outlet] with thousands of audiences in Iran and, all around the world. Since he had worked more than 10 years in Iran as a [Occupation 1] and many people know him, it is more likely that his video would be reported to the government by viewers, including my brother.
We participated in a protest [in] November 2019 at [location]. Again, our activity may have been recorded by regime spies on that day…
… I must emphasise that [Occupation 1] are one of the groups that the government is very vigilant about and monitors their behaviour as closely as possible.
Delegate’s decision

The delegate’s decision of 29 April 2020 to refuse the protection visas was made on the information before the delegate. As to the primary applicant’s fears arising from her atheist beliefs the delegate accepted the primary applicant was born into a Muslim family in Iran and she had been a practising Muslim until she became an atheist in 2012. The delegate found that atheism may be considered as apostasy in Iran and further found that the primary applicant had a subjective fear that she would be seriously harmed or killed if she returns to Iran because of her religious beliefs, being an atheist. As to the primary applicant’s fear of her brother the delegate found that she and her husband, the secondary applicant, had reported her brother [Mr A] to the police and took him to court for damaging their property. The delegate found that the applicant’s younger brother [Mr A] is a member of the Basij but not a member of the Intelligence Branch of the Islamic Revolutionary Guards Corps (IRGC) known Iran as Etellat-e Sepah. The delegate found that the primary applicant’s claims that her brother would cause her harm by reporting her in the future to be speculative and not credible. The applicant further found that the applicants’ delay in making application for their protection visa of seven months was not supportive of their claimed fear of harm upon their return to Iran. The delegate was not satisfied that the primary applicant was a refugee as defined by s 5H of the Act and therefore was not satisfied that the primary applicant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a). The delegate was further not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed to Iran that there was a risk she would suffer significant harm as defined in s 36(2)(aa) of the Act . Therefore, the delegate found that the primary applicant was not a person of whom Australia had protection obligations as provided for in s 36(2)(aa) of the Act.
Invitation to attend hearing
On 24 February 2023 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 30 March 2023 at 9.30 am at the Brisbane Registry. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 8 March 2023 the Tribunal informed the applicants that their Review hearing had been postponed and re-scheduled to a new date of 18 April 2023 at 9:30 am at the Brisbane Registry.
Pre-hearing submissions
On 5 April 2023 the Tribunal received a submission from the applicants’ new representatives, Refugee Legal. The submission provided a summary of the applicants’ background and a summary of the primary applicant’s evidence in support of and consistent with her claims together with an overview of the new claims of the secondary applicant.
New claims – Secondary applicant
Those new claims and the explanation for not having raised the claims earlier were outlined at pages 2 to 4 of the submission where it was (in part and as relevant) stated that:
[The secondary applicant] has not previously raised claims for protection. As explained in his statutory declaration dated 5 April 2023, the former migration agent advised [the secondary applicant] that his wife’s claims for protection were strong and therefore he was not required to raise any additional claim for protection. [The primary applicant] made a complaint against their former migration agent…
[The secondary applicant] is a highly educated individual and, prior to leaving Iran, worked as a [Occupation 1] at [Employer 1] for over 10 years, since 2011. In March 2012, [the secondary applicant] employment contract was unilaterally terminated on the basis that he did not participate in religious-political meetings or whole speech is to spread the government’s thoughts. He refused to participate in religious ceremonies, and he also refused to join the Basij.
[The secondary applicant], together with his wife, had begun to question their religious beliefs in light of the Iranian regime’s strict interpretation of Islam and, in particular, the restrictions the regime imposed on women, such as [the primary applicant], and the fanatical beliefs and inappropriate behaviours of some individuals who had joined the Basij, such as [the primary applicant]’s brother, [Mr A]. Since 2012 [the secondary applicant] has not identified as a Muslim and has not practised any form of his lamb since this time. He now identifies himself as non-religious.
In turn, [the secondary applicant] discussed some of his views with [colleagues], in the hope that he could challenge [them] to think critically about the meaning and interpretation of Islam. [The secondary applicant] challenged the termination of his employment at [Employer 1] and, in 2013, his position was reinstated. However, he felt he was being closely monitored by the [Employer 1] security and members of the Basij which accumulated in him being indirectly threatened by the head of security when he was asked whether we knew why one of his [colleagues], had been killed…
In Australia, [the secondary applicant] has undertaken the following activities in continuation of his religious and political views on the Iranian regime:
a.Recorded a video of himself [in] September 2019 to campaign with of movement ‘[Campaign 1]’. [The secondary applicant] sent the video to [Media outlet 1] via email and it was uploaded on [social media]. In this video [the secondary applicant] talks about the necessity of the Iranian regime’s destruction. He recorded this video [at his residence] in Melbourne. [The secondary applicant] instructs that [Media outlet 1] is a very popular free to air Persian language general entertainment [outlet] with thousands of viewers in Iran and worldwide.
b.Published anti-regime posts on [Social media 4] and [Social media 5] platforms under his real name.
c.Participated in the end here are rainy and regime protests in Brisbane [in] October 2022 and in Sydney [in] December 2022.
d.Remove the flag of the Islamic Republic of Iran at [named] hotel in Sydney [in] December 2022.
[The secondary applicant] fears that, if he is returned to Iran, he will suffer serious harm in the form of threats to his life, significant physical ill-treatment in the form of imprisonment and torture, significant harassment and discrimination that threatens his capacity to subsist from the Iranian regime, including members of the Basij and security personnel at [Employer 1], for the following essential and significant reasons, either cumulatively or separately:
e.his nonreligious beliefs;
f.his political opinion in opposition to the Iranian regime’s strict interpretation of Sharia Law and human rights abuses, including the oppression of women; and
g.his membership of the following social groups, variously described:
·[Occupation 1] in Iran who are hostile to the Iranian regime;
·dissident [Occupation 1] in Iran; and
·returned asylum seekers who have acted against the Iranian regime while abroad…
The applicants’ submission also addressed the primary applicant’s claims as previously raised and discussed the cumulative effect of these claims. The submission also referred to relevant country information as to the treatment of dissident [Occupation 1] in Iran; treatment of women in Iran who defy social norms; treatment of atheists in Iran; and treatment of returned asylum seekers, including those who have acted against the Iranian regime while abroad. The submission also addressed ‘Harm feared from [Mr A]’ and highlighted that United Kingdom country information indicated that ‘honour’ crimes are committed against woman by male members of the family. It was further stated in the submission as to her brother [Mr A] that:
… actions and taking her brother to court could be seen to have damaged her family’s reputation, for example neighbours witnessed the damage [Mr A] cause to their car and to her mother’s property and were aware of the subsequent court action she took against her brother to seek a remedy for the damages he caused. On this basis, [the primary applicant] is at risk of facing honour-based violence from her brother if she is forced to return to Iran. The risk is elevated because [Mr A] is a member of the Basij militia…
Amongst the documents submitted to the Tribunal with the submission and relied upon in the submission were Statutory Declarations under the hand of the applicants which were consistent with the matters raised in the submission and in support of their claims and fears as to them seeking protection in Australia.
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 ‘Atheists and Secular or Non-Practising Muslims’ at 3.70 to 3.72 where it states at 3.71 and 3.72 that:
A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty (see Religiously-Based Charges). DFAT is unable to verify what proportion of the population is atheist. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, but would generally not be subjected to physical harm. Local sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure. DFAT is unaware of individuals being prosecuted for atheism.
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non- belief face a moderate level of official and societal discrimination.
Under the heading ‘Religiously-Based Charges’ 3.73 to 3.77 where at 3.75 to 3.77 it is reported that:
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.
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 ‘Women’, at 3.120 to 3.126, at 3.121 and 3.122 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…
Women from more religiously-minded families generally require the permission of a male guardian to travel alone and can face societal harassment for doing so, particularly in more conservative areas.
Married women require the written permission of their husbands, and non-married women under the age of 40 the permission of their fathers or other male relatives, to obtain a passport and travel abroad (see Exit and Entry Procedures). Under Article 1117 of the Civil Code, a husband may prevent his wife from working in occupations deemed incompatible with family interests, or the dignity of himself or his wife. Women are not supposed to mix openly with unmarried or unrelated men. Those caught doing so can be sentenced to up to 99 lashes. Article 550 of the Penal Code stipulates that the value of a woman’s life is half that of a man’s. Likewise, a woman’s testimony in court is half the weight of a man’s.
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 ‘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 reviewed information about [Media outlet 1] and notes [that] in an article by [name] ‘[article title]’ that it was reported that [Media outlet 1 is extremely popular, and has angered Iranian authorities, for promoting values running contrary to Islam]:
[Text deleted][1]
[1] [Source redacted]
Review hearing – 18 March 2023
The Tribunal forwarded correspondence to the applicants on 17 April 2023 advising the applicants that the Tribunal had considered all the material before it relating to their application and was now able to make a favourable decision on that information alone. The Tribunal advised the applicants that they were no longer invited to give oral evidence and present arguments at a hearing and that the hearing was now vacated.
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 applicants claim to be citizens of Iran. The applicants provided copies of their passports, national identity card and marriage certificate to the department. Based on this material the Tribunal finds that the applicants are who they say they are, and nationals of Iran. Iran is therefore the receiving country for the purpose of assessing the applicants 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.[2] 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.[3] This is consistent with the established proposition that it is for the applicant to make his or her own case.[4]
[2] Section 5AAA of the Act.
[3] Ibid (with effect from 14 April 2015).
[4] 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.[5] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[6] 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.
[5] Fox v Percy (2003) 214 CLR 118.
[6] 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.[7] A similar approach is taken in the department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[9] which provides useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[9] UNHCR Handbook, re-issued February 2019 at [203]–[204].
Secondary applicant’s new claims
Before considering the applicants claims for protection the Tribunal has had to consider the provisions of s 423A of the Act as to how it deals with the secondary applicant’s new claims and evidence.
The secondary applicant’s claims for protection were raised for the first time in the pre-hearing submission of the applicants’ representative on 5 April 2023 and his Statutory Declaration of that date and are outlined above at paragraph 23. In the secondary applicant’s declaration and the submission of the applicants’ representative it is explained that the reason that the secondary applicant having not raised his claims until prior to the scheduled hearing was that their former migration agent had advised the applicants that the primary applicants claims were strong and therefore there was no need to raise his (secondary applicant’s) additional claims.
The Tribunal has carefully considered this matter and noting the complaint that has been made by the applicants against their former representative and more importantly the significant similarity in the accounts of the applicants, the Tribunal finds that firstly the secondary applicant has provided a reasonable explanation as to why his claims and supporting evidence were not raised in their application and/or before the original decision maker. Secondly, the Tribunal for the reasons below accepts the secondary applicant’s claims together with those of the primary applicant. However, the Tribunal notes that but for the corroborative history provided by the primary applicant in her claims and evidence, the Tribunal would not have accepted the secondary applicant’s explanation as to these new claims not being raised earlier and this would have cast some doubt on the Tribunal’s assessment of the secondary applicant’s reliability and credit such that the Tribunal would have proceeded to an oral examination of the applicants at a hearing.
Religion
The primary applicant’s evidence is that she will be seriously harmed or killed by the Iranian authorities if she was to return to Iran as she has turned away from Islam and is an atheist and would be prosecuted for apostasy.
Having considered the evidence before the Tribunal and noting the primary applicant’s consistent and detailed evidence provided to the Department and the Tribunal as to this issue which has been summarised by the Tribunal above. The Tribunal is satisfied that the primary applicant has turned away from her family and childhood religion of Islam and through her pursuit of scientific tertiary studies and her own critical assessments of her former religion has chosen to be an atheist.
The Tribunal is also satisfied on the evidence before it that the secondary applicant has also made a conscious decision to reject religion and is also an atheist.
Although the applicants on the evidence before the Tribunal, have and would, if necessary, upon being returned to Iran conceal their religious views to avoid a real chance of persecution and prosecution for apostasy which could result in serious harm and/or death. The Tribunal finds that such modification of their behaviour would require them to conceal their true religious beliefs; s 5J(3)(c)(i) of the Act.
Given that they have previously either openly discussed or been perceived by family and colleagues as having these beliefs and with reference to the relevant available country information as outlined above at paragraph 26 which in part provides that:
A Muslim who renounces Islam and becomes atheist is considered apostate and risks state persecution and, potentially, the death penalty.
And:
DFAT assesses that atheists who are open about their non- belief face a moderate level of official and societal discrimination.
Additionally, that:
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.
The Tribunal finds that the applicants do face a real chance of persecution involving serious harm arising from their religious views and being atheists and that they face a real chance of being prosecuted by the Iranian authorities for apostasy if they were to return to Iran in the reasonably foreseeable future.
The Tribunal finds that the applicants’ fears in regard to their religious views, and being prosecuted for apostasy as outlined above, are well-founded.
Political opinion (actual and/or imputed)
The applicants claim that their expressed and/or perceived anti-Iranian (government) political opinion as to the regime’s strict interpretation of Sharia Law and the oppression of women would place them at risk of arrest, detention, prosecution and death if they were to return to Iran.
On the evidence before the Tribunal including the secondary applicant’s loss of employment and later monitoring by [Employer 1] security personal. Together with the views that the applicants have expressed to friends and relatives in Iran as to their political views and in particular those views as to religion (see above) and the oppression of woman, and with reference to the country information as outlined above at paragraph 26. The Tribunal is satisfied that the applicants face if they return to Iran in the reasonably foreseeable future a real chance of persecution involving serious harm as to their actual and/or imputed political opinion.
Additionally given the applicants involvement in anti-Iranian demonstrations and internet posted statements in Australia as outlined above at paragraphs 18 and 23 and that the secondary applicant has had his views [disseminated by Media outlet 1]. The Tribunal finds that it is most likely that the applicants have either obtained an anti-Iranian government profile prior to or since departing Iran and if they did have such a profile prior to their departure from Iran such profile has been amplified by their anti-Iranian government activities here in Australia since 2016.
As to the applicants conduct (involvement in anti-Iranian government demonstrations and the making of videos and statements critical of the Iranian regime) in Australia the Tribunal has considered as it is required to do so the provisions of s 5J(6) of the Act as to whether the applicants conduct in Australia was for the purpose other than the strengthening of their claims of being refugees. After careful consideration of the primary applicants’ consistent evidence over many years and the recent corroborative evidence of the secondary applicant the Tribunal is satisfied that the conduct of the applicants in Australia as to their involvement in demonstrations and the making of public statements which most likely were [disseminated by Media outlet 1] to Iran were consistent with their long-held views and in accordance with their earlier conduct in Iran. The Tribunal finds that this conduct has been an honest expression of of their true beliefs and their reflective of their character.
As such the Tribunal is satisfied that the applicants’ involvement in demonstrations and other anti-Iranian government conduct in Australia was engaged in by the applicants as a true expression of their beliefs and to publicise and galvanise support in Australia and internationally for the opposition to the oppression of woman and the oppression, arrest and killing of Iranian dissidents for their political and religious views by the Iranian government. The Tribunal is satisfied that this conduct of the applicants was other than for the purpose of strengthening their claims to be refugees.
The Tribunal is satisfied on the evidence before it that the applicants did have and/or have now obtained a significant anti-Iranian government profile which would be further amplified by the primary applicant’s brother’s views of them and his membership of the Basij (see below). Therefore, the Tribunal finds that the applicants face a real chance of persecution involving serious harm for their actual and/or imputed political opinion if they were in the reasonably foreseeable future to return to Iran. The applicants’ fears in this regard are well-founded.
Fear of brother
The applicants’ fear that the primary applicant’s younger brother [Mr A] who they believe to be a member of the Basij would report them for their views (religious and political) and conduct if they were to return to Iran. Such views being their anti-Iranian government stance including the secondary applicant’s reported statements as outlined above which have been critical of the Iranian regime and [disseminated by Media outlet 1] together with the primary applicant’s past and likely future failure to comply strictly with the Islamic dress code for woman.
Given the long-held and honestly expressed views held by the applicants as to the oppression of woman and their non-practice of the Islamic faith which they previously exhibited in Iran before [Mr A], together with their absence from Iran and their anti-Iranian government activities in Australia the Tribunal finds on the evidence before it as outlined above that the applicants face a real chance of persecution involving serious harm if they were to return to Iran in the reasonably foreseeable future on the basis of the primary applicant’s brother [Mr A] reporting them to the Iranian authorities. Also noting that the primary applicant’s brother has previously committed violent property damage against the applicants and upon their complaint to police and the courts about him, that he was admonished by the courts, the Tribunal finds that the applicants’ fears as to the primary applicant’s brother [Mr A] are well-founded.
Woman
The applicants have indicated that they are opposed to the Iranian government’s oppression of woman by way of the government’s strict adherence to their Islamic views as to the role of woman in Iranian society, and their strict enforcement of their Islamic dress code upon women.
As discussed above the Tribunal accepts that the applicants have expressed their views on this issue both in Iran to friends and relatives including the primary applicant’s younger brother [Mr A] a member of the Basij and in Australia including through [Media outlet 1]. As such and as outlined above the Tribunal accepts that the applicants have had and/or have obtained or accentuated their existing profile with the Iranian authorities of being anti-government due to the regime’s oppression of woman and enforcement of Islamic religion and practices.
Given the risk from the primary applicant’s younger brother [Mr A] as discussed above and the anti-Iranian government activities that the applicants have been involved in here in Australia, some of which have likely been [viewed] in Iran. The Tribunal finds that the applicants face a real chance of persecution involving serious harm if they were to return to Iran in the reasonably foreseeable future for their membership of a particular social group being those who oppose and criticise the Iranian regime’s oppression and treatment of woman.
Additionally given the relevant country information as outlined above at paragraph 26 and noting that it is reported 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…
The Tribunal finds that the applicants’ fears as to this issue of ‘woman’ and their open expression of opposition to the oppression of woman in Iran is well-founded.
Failed asylum seeker
The Tribunal has also considered whether the applicants would be harmed if they were to return to Iran in the reasonably foreseeable future on the basis of being failed asylum seekers. Notwithstanding the relevant country information as outlined above provides that being a failed asylum seeker is not of itself a trigger for persecution involving serious harm. The Tribunal finds that given the adverse profile that the applicants have with the Iranian authorities, see above findings, their anti-Iranian government activities in Australia as discussed above; together with the real chance that the primary applicant’s younger brother [Mr A] a member of the Basij would report them for their political and social views. The applicants face a real chance of persecution involving serious harm if they were to return to Iran in the reasonably foreseeable future on the basis of being failed asylum seekers. The Tribunal finds that the applicants’ fears in this regard are well-founded.
Refugee criterion
The Tribunal, having considered all of the applicants claims both individually and cumulatively, does accept that the applicants face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of religion, an actual and/or imputed political opinion, and membership of a particular social group in all areas of their receiving country, Iran. The Tribunal finds on the evidence before it that the applicants in this regard cannot rely upon the Iranian authorities to provide protection to them and as such there are not effective protection measures available to the applicants from the Iranian authorities: s 5J(2). Additionally, on the evidence before it, the Tribunal finds that the applicants cannot reasonably modify their behaviour in Iran as such modification would involve altering their religious and political beliefs and concealing their true religious and political beliefs: s 5J(3)(c)(i)&(iii) of the Act.
Therefore, the Tribunal finds that the applicants’ fears of persecution arising from their religious and political views are well-founded as required by s 5J of the Act, and therefore, the applicants are refugees within the definition of s 5H of the Act.
Having found that the applicants are refugees the Tribunal has also considered whether the applicant have a right to enter and reside in another country other than Australia. The Tribunal finds that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicants do meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicants are 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 applicants satisfy
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 2679

20 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Standing

Appeal