2010575 (Refugee)

2010575 (Refugee) [2023] AATA 2505 (22 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kamran Ghanbari (MARN: 0848517)
CASE NUMBER:  2010575
COUNTRY OF REFERENCE:                   Iran
MEMBER:Katherine Harvey
DATE:22 May 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act, and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 22 May 2023 at 3:10pm

CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – a Christian convert – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution for reason of her religion – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 23 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of the Islamic Republic of Iran (Iran). The first named applicant (the applicant) is a [age]-year-old woman and the second named applicant is her [age]-year-old husband. They most recently arrived in Australia on [date] December 2018 travelling on Iranian passports as the holders of visitor visas.
On 13 November 2019, the applicants applied for protection visas.
On 23 June 2020, a delegate of the Minister refused to grant the visas.
The review application
On 24 June 2020, the applicants applied for a review of that decision. They provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 5 October 2021, the applicants’ representative submitted a 12-page statement dated 26 February 2021 addressing the delegate’s decision. The representative also submitted:
· a letter dated 26 April 2021 from [Pastor A] of [a] Church, and
· a letter dated 13 March 2021 from [Pastor B] of [Church 1].
On 24 January 2023, the applicants’ representative submitted:
·   a Funeral Director statement of death for [a named person], who died on 13 May 2019 in [Country 1]
·   a Western Australian death certificate for [a named person], who died on 30 December 2021
·   a Fatal Crash Advice form from WA Police about the accident on 30 December 2021
·   three photographs of the applicant holding a ‘Woman Life Freedom’ placard
·   a referral letter for the applicant dated 28 October 2022 from [a named doctor], [a named medical centre] to [Dr C]
·   a histopathology report dated 16 September 2021 for the applicant, and
·   an undated letter from [Dr C], Registered Psychologist advising the applicant displays symptoms of major depressive disorder and prolonged grief reaction in the context of the recent loss of two sons within 2.5 years and her diagnosis of [a medical condition].
On 20 April 2023, the Tribunal wrote to the applicants advising that it had considered all of the material before it relating to the applicant but 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 on 10 May 2023 and to provide all documents that they intended to rely on to support their case by 3 May 2023.
On 2 May 2023, the representative submitted:
·   a statement from the applicant, dated 1 May 2023
·   a statement from the applicants’ son [Mr D], dated 1 May 2023
·   a statement from the applicants’ son [Mr E], dated 1 May 2023, and
·   a letter dated 30 April 2023 from [Pastor B] and [a named person] of [Church 1].
The applicant appeared before the Tribunal on 10 May 2023 to give evidence and present arguments. Her son [Mr D] accompanied her as a support person. The Tribunal also received oral evidence from [Pastor A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicants were represented in relation to the review and their registered migration agent attended the hearing.
At the beginning of the hearing, the representative provided a letter dated 5 May 2023 from [a named doctor], advising that the second named applicant is currently a patient being treated at [named] Hospital.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicants have a well-founded fear of persecution for a refugee nexus reason, or if they are owed complementary protection, or if they are a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant’s personal details are set out in her application for protection. She is [age] years old and was born in Bandar Anzali, Gilan, Iran. She is married and had four sons. The second named applicant is her husband.
In her application she provided details of her late mother and father, her late parents-in-law, her late sister, and her husband’s three late brothers and two late sisters, as well as her husband’s surviving brother, who lives in Iran. She also provided details of her four sons. Her oldest son (now deceased) was an Australian citizen living in Australia, her next son was a [Country 1] citizen (deceased), her third and fourth son were (at the time of application) citizens of Iran living in Australia. Her third son is now an Australian citizen.
Country of reference
The applicant claims that she was born in Bandar Anzali, Gilan, Iran and is a citizen of Iran. She provided a copy of the biodata page of her Iranian passport.
The second named applicant claims that he was born in Khoramshahr, Khozistan, Iran and is a citizen of Iran. He provided a copy of the biodata page of his Iranian passport.
The Tribunal is satisfied that the applicants are citizens of Iran and that Iran is the receiving country for the purpose of s 36(2)(aa) of the Act.
The applicant claims that she does not hold citizenship of another country or have the right to enter and reside in another country. There is no information before the Tribunal that suggests that the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently. The Tribunal finds that s 36(3) does not apply to the applicant.
Summary of claims
The applicant’s claims are set out in the application for a protection visa.
She claimed that she was a Muslim in name only and grew up in a non-religious family without pressure to conform.
She claimed that soon after her second son migrated to [Country 1] he became very interested in Christianity and they used to talk for hours and hours about Christianity. Her son would read her parts of the Bible over internet [applications].
She claimed that her son, who developed cancer [in] early 2018, converted to Christianity before he died.
She claimed that during his treatment, she, her husband and their oldest son attended several churches to pray for his health.
She claimed that she converted to Christianity because she loves Christianity and she wants to join her son when she goes to heaven.
She claimed that she is reluctant to go return to Iran because, if anyone finds out that she has converted to Christianity, they can kill her without any problems as an apostate.
She claimed that she cannot practice Christianity in Iran without fear and that she takes her religion very seriously and it is a strong part of her life as an elderly woman. She finds great comfort in her beliefs, including her hope to go to heaven after she dies.
She claimed that she may not have long to live and, when she dies, she does not want to be buried in the way that Muslims are buried.
She claimed that she does not have any of her immediate family in Iran.
On 3 March 2020, the applicant’s representative provided:
· copies of the Certificates of Baptism for the applicant, her eldest and her youngest son, all dated 9 February 2020 and recording that [Pastor A] officiated.
· copies of baptism photographs showing the applicant at church.
Assessment of claims and evidence
Is the applicant a Christian convert?
In her statutory declaration dated 30 September 2019, the applicant said that she converted to Christianity because she loves Christianity and because she wants to join her second son when she goes to heaven. Her second son died of cancer on [date] May 2019 in [Country 1] and he converted to Christianity before he died, which she said had a strong influence on others in the family. She claimed that she promised herself she would be Christian and join him in heaven and she is very serious about holding to that promise.
When asked what it means to be a Christian for her, the applicant said that Jesus shows you the correct, proper way of living and shows you that God, the Holy Spirit and Jesus were all the same. She said that Jesus was crucified and raised from the dead for salvation, so that it washed your sins so you could be freed, enabling salvation for us so we could live sin free. She said that she goes to church, she participates in prayer sessions and people like [name] and [name] in Perth help them. She said that she’s still in a learning process and still learning a lot.
The applicant said that she goes to church every week, from 6–9 pm on Saturdays. She said a great deal of time is spent with speeches. People speak in English or Farsi and they put earphones on so they can hear the translation of what is said. She said that anyone can give a speech. After that, they have prayers. She said different families come and everybody within their means helps others. She said that when she prays there is a very deep sense of calm, she feels very calm and relaxed and very fulfilled. She said that whenever she goes to church, she feels very content. She said that they take communion once a month and that they sing hymns in English and Farsi.
Outside of church services, she said that she accesses the social media app [for] networking. If someone reads a verse that they like, they share it with everybody else. They are in constant communication with each other about what they find interesting. She also said that she visits her oldest son’s grave every week to pray for him and her other son who died.
The applicant was asked why she talks to people about being a Christian. She said because she finds Christianity is great. She said ‘nobody lives forever, we die and I like to do good deeds before I die. I am not young anymore and I don’t have ambition other than to promote the righteous way’. She said that the Bible shows you to follow the right, correct ways and, if you have difficulty, you can turn to the Bible and may find a solution to your problem. She said that God has shown her the way through her children and she does not want to destroy it or give it away.
She said that she insists on taking her [age]-year-old granddaughter to church. She said that she tries to talk to everybody, that she is trying to encourage everyone. She said she does talk to her husband about Christianity but he is not very well, he is suffering from dementia and not really with it. He sometimes calls for his oldest son from his room, thinking he is still alive.
She said that her second son showed her the way and she feels responsible to uphold her belief. She believes that she owes it to her second son to bring up his son, her grandson, as a Christian. She said that, even through her grandson lives at a distance (in [Country 1]), she still feels that responsibility.
[Pastor A] said that he first met the applicant when he was the associate pastor at [a] Church, where they had many Iranians in the congregation. He thought it was in 2019. As recorded on the Certificate of Baptism and shown in the photos, [Pastor A] officiated at the applicant’s baptism. Noting that the delegate was concerned about the time it took for the applicant to be baptised, the Tribunal asked [Pastor A] how he prepared candidates for baptism. He said he had written a small brochure that he gives to candidates that outlines with Bible references what baptism is about. He prays with them. He said that he believes that baptism comes after someone becomes a Christian – ‘by your faith you will be known’ – and after someone is a Christian, he takes them into the waters of baptism by immersion.
[Pastor A] said that he has no doubt whatsoever about the applicant’s faith in Jesus and he baptised her knowing that her faith was strong. He said that he knows what he has observed and what they have discussed. He has been to the applicant’s home on two occasions, in Adelaide and in Perth, and they have talked about her Christian faith. He said that he has ‘no doubt that she is a fine Christian woman with faith in her God and her Jesus’. He said he has not seen her faith in practice so much as in discussions and her story, generally speaking about her conversion to Christianity. He said he has conversations about her faith. During COVID, he thought she was in Perth and they would have telephone conversations through her son, who would interpret for him and his mother. They would talk about general things: her life, what she was doing and how she was going to the Farsi-speaking church.
Based on the evidence from the applicant, [Pastor A] and the [Church 1], the Tribunal accepts that the applicant is a Christian convert who is a practising Christian with a genuine and ongoing commitment to Christianity.
Treatment as Christian convert in Iran
The applicant said that she would like to be known as a Christian and she would like to join her children when she dies, as promised in the Bible.
She thought that it was inevitable for someone in Iran to know that she was a Christian. She said that people including neighbours and friends of her children know that, when her two sons died, they were buried as Christians. She said that when they died, people posted condolences on Facebook and so on and mentioned that they were Christians, so it is public knowledge.
She said that in Australia and Iran, she has a lot of friends and contacts, and she talks to them about Christianity. She said that especially after the passing of her children, people have a lot more knowledge about the religion that they follow.
She said that she does not wish to hide her religion, she likes to promote it and to talk about it. She said that she likes to go to church, but she would not be able to if she was in Iran. She said that, when she meets her friends, she talks about it and tries to promote Christianity. She said that if she returned to Iran, she would not be able to do that, she would be arrested immediately.
The applicant said that the regime in Iran does not show any mercy to anybody at any age. She said that they do not even spare young babies, let alone someone of her age and that they poke into everybody’s life. She said the regime encourages people to dob on and be against each other. It causes unrest amongst people to cause aggravation. She said that the regime is always harassing and persecuting religious minorities by putting them in jail and so on. She said they would regard her as a non-believer, as a person who relinquished her religion, an apostate.
The Country Information report provides the following information about the use of religiously based charges against Muslim-born converts to Christianity:
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[1]
Second named applicant
[1] Department of Foreign Affairs and Trade DFAT Country Information Report IRAN (April 2020) 36–37.

At the hearing, the representative confirmed the information in the applicant’s protection visa application and the decision record, a copy of which was provided to the Tribunal, that the second named applicant did not have any protection claims.
Does the applicant have a well-founded fear of persecution for a refugee nexus reason?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[2]
[2] Chan Yee Kin v MIEA (1989) 169 CLR 379.
On the evidence before it, the Tribunal is satisfied that the applicant fears being persecuted because she is a Christian convert who intends to practice her religion, and the Tribunal is satisfied that there is a real chance that the applicant would be persecuted as a Muslim-born convert to Christianity.
Given the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant returns to Iran now or in the foreseeable future, there is a real chance that she will suffer serious harm and systematic and discriminatory conduct because of her religion.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of her religion.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Iran, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of her religion.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify her behaviour to avoid a real chance of persecution.
The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s husband is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Katherine Harvey
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2505

22 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice