2012475 (Refugee)

2012475 (Refugee) [2023] AATA 4832 (8 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Ahmad Vahedian Ghaffari (MARN: 1462882)
CASE NUMBER: 2012475

COUNTRY OF REFERENCE: Iran
MEMBER:Paul Noonan
DATE:8 December 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
Statement made on 8 December 2023 at 11.08am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – political opinion – criticising the Iranian government – church outreach and recruitment programs – apostacy – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 16 June 2020. The delegate refused to grant the visa on the basis that the applicant’s claim with respect to his religion was not credible and that he would not come to the adverse attention of Iranian authorities for any other reason claimed and as such did not have a well-founded fear of persecution. Further that economic harm feared does not constitute significant harm and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Iran, there is a real risk that he will suffer significant harm. Accordingly, he was not owed protection by Australia.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant made a valid application for review on 16 June 2020.
The applicant appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s witness, [Leader A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of nationality
The applicant arrived in Australia without a passport. He informed the Department that it was taken by a people smuggler. He did provide the Department with certified copies of his birth certificate, Iranian National Identity Card and Iranian Military Completion card and a scanned copy of his Victorian driver’s licence. The applicant has at all times stated that he is a citizen of Iran and he has been assessed on that basis by the Department. The Tribunal finds he is an Iranian citizen and has assessed his claims against Iran as the country of nationality and the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is currently [age] years old. He was born in [City 1], East Azerbaijan and identifies his ethnicity as Azeri. He departed legally from Iran through the Imam Khomeini International Airport in Tehran. He caught a boat to Australia from Indonesia and arrived without his passport. He works as [an occupation 1] in Australia. His father passed away in 2008. His mother and [specified family members] reside in Iran. He has a [sibling] living in [Country 1] and [another] living in Australia.
The Tribunal accepts the above to be true.
The applicant supplied a copy of the delegate’s decision to the Tribunal when he applied for review of that decision.
The applicant’s claims
In his initial entry interviews into Australia, conducted on 29 November 2012 and 13 December 2012, the applicant is recorded as stating that he said it was not possible to criticise the Iranian government, he was stopped by the police and questioned when in the company of his girlfriend and that the economy was weak, and he needed to provide for his family and he had mental health problems.
In a statement of claim for protection, made on 14 September 2017, the applicant stated that he had started to lose faith in Islam after witnessing the brutal crackdown on protestors by the authorities in 2009, because these actions were done in the name of Islam. He subsequently abandoned Islam while still in Iran. He then left Iran. In 2016 he began attending Christian services in Australia and subsequently converted to Christianity. He fears persecution because of this conversion.
Prior to the hearing the applicant submitted extensive social media posts, under the part pseudonym used by the applicant ‘[Alias A]’ that reflects his Christian religious activity in Australia starting with attendance at [Church 1] in 2017, a letter of support from [Leader A] of [Church 2] attesting to the applicant’s attendance at the church since 2021 and his prior engagement with the [Church 3]; and a letter of support from [Leader B], [of Church 1], stating that the applicant attended the church between June 2016 and June 2018 and was baptised into the Christian faith [in] October 2016. The Tribunal notes the delegate set out in their decision that they accepted that [Church 1] had posted a social media post containing an image of the applicant’s baptism without identifying him by name.
The applicant has been in Australia now for a period of more than 10 years. Over this time his claims have changed. By the time of the Tribunal proceedings, the applicant’s fear of harm on return was centred on his surplus claims to have converted to Christianity since his arrival in Australia. Despite the length of time the applicant has been in Australia, because of continuous changes in the migration laws and delays in the application system the applicant’s claims for protection were only first heard and reviewed by a delegate in 2020.
The delegate accepted that the applicant grew up as a Muslim. The delegate did not accept that the applicant had abandoned Islam while living in Iran. This was because he did not mention this in his initial entry interview into Australia and had not made reasonable efforts to research his decision. The delegate also found that if he had done so he would have been subject to harsh treatment while doing his compulsory military service and as such found it would be unlikely he would have abandoned Islam during this period which was served between March to October 2011.
The Tribunal has considered the delegate’s concerns with regard to the applicant’s claim of losing faith in Islam while still in Iran. The Tribunal does not consider the lack of mention of this in the initial interview definitively reflects the applicant had not come to such a position. These interviews were undertaken during a period of stress and in an initial unfamiliar environment and economic concerns were likely at the forefront of the applicant’s mind. It is also undisputed that he had not suffered past harm in Iran due to his religious views and he did mention political concerns which he has later stated were related to his move away from Islam and as such there is a link to his initial claims to this claim. The delegate’s reasoning with respect to military service treatment does not appear to relate directly to country information as DFAT just assesses generally that conditions for military service can be harsh.[1] There is no discussion about the treatment of non-practising Muslims in the military. Further the decision is a personal one and would not appear to require a great deal of research as cited as a concern by the delegate. DFAT reports that studies have shown that up to 20 per cent of Iranians do not believe in God and do not actively worship or practise Islam. Many younger Iranians are secular and a majority of the population do not attend mosque. DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities.[2] Given this country information the Tribunal accepts as reasonably plausible the applicant’s claim to have lost faith in Islam due to the ongoing mixing of religion and politics as set out by DFAT which states that Iran is a theocratic republic where an Islamic jurist (the Supreme Leader) makes final policy decisions and that there are ongoing human rights abuses perpetrated under this system.[3]
[1] Ibid. p.31
[2] DFAT Country Information Report, 24 July 2023, p 23
[3] Ibid, pp 12, 8
The delegate accepted that the applicant attended an English language evangelical Christian church but found his claimed conversion was not genuine as his baptism was based on implausible evidence with respect to his understanding of Christianity and because he did not provide any witnesses from his church. Further, that while he claimed to have moved to a [Church 3 variant] in 2017, this church was not registered with the Australian Charities and Not-For-Profits Commission until over a year after this claimed joining date which caused the delegate to doubt the plausibility of this claim. In addition, the delegate doubted the plausibility of evidence given by the applicant that he viewed the Christian God like a father-son relationship when his own father was apparently a strict Muslim and that he was scared of him. The delegate also doubted the applicant’s claim to be drawn to evangelise as he had not thought about how he would do so in Iran and also he had only posted such messages on [social media] using a pseudonym and had not done so in person. Further, there is no reason to consider the Iranian authorities would be aware of the posted picture of his baptism. Overall, the delegate considered the conversion was activity undertaken for the sole purpose of strengthening the applicant’s protection claims.
The delegate also found that the applicant has no mental health issues.
Before the Tribunal the applicant gave evidence that he had changed his name to [Alias A] when he converted. All his friends know him by this name and he posts Christian content under that name. His profile is public. He undertook a baptism, which he explained meant a new beginning or a rebirth to him. The initial church he joined was very big and he was just introduced by a friend and went out of curiosity. His poor English made it difficult for him to relate to people there. The Tribunal discussed that he could only provide two persons’ names involved with his baptism and his evidence may reflect that he was not very engaged with that church and it may be surprising that he chose to be baptised under such circumstances. The applicant noted he is still connected with the Pastor there and he attended every week and he was searching for spiritual meaning at the time.
The applicant submitted that soon after he joined the [named] Church. In the afternoons on Sundays they changed the atmosphere of the church to something more akin to a [Church 3] [at a named location]. It was unregistered but it was being formed at that time. He built the office for the church at that time and contributed financially to help in the push to get the church through to registration. He also participated in Bible studies on Wednesdays.
He then joined [Church 2] in 2019 because the Pastor of the [Church 3] was not functioning well and had [a medical condition] and he wished to actively pursue knowledge of his faith.
The Tribunal took evidence from [Leader A] of [Church 2]. She presented identification which confirmed to the Tribunal’s satisfaction that she is a registered [leader] of the [Denomination 1] and the lead Pastor of the [Church 2], a copy of which has been placed on the Tribunal’s file. She stated she has been in this position since 2013. She stated that she has known the applicant since 2018. She confirmed that the applicant became a member of the church in 2019 and has presented actively. She stated that the applicant comes to church early and shows a great deal of passion towards reading the Bible and assisting in doing so behind the lectern. He actively assists in bringing other youth members of the community into the church. She confirmed that her church is linked closely with the traditional [Denomination 1] church. She submitted that the applicant has a gift for spreading the word and bringing new people to the church. He has attended the church every week since joining. He attends for the full session and stays longer communicating with the fellowship from 5.30pm to 8.30pm on Sundays. He also attends other sessions of the church and functions. When questioned as to whether the applicant’s conversion is genuine, [Leader A] stated that she had been given no reason to doubt this and the applicant’s actions have consistently reflected a passionate and consistent commitment to his Christian faith.
The Tribunal has also considered a letter provided by [Leader A], dated 29 September 2023. In this letter [Leader A] stated that she knew the applicant prior to him joining her church when he was a member of the [Church 3]. He joined her church as the [Church 3] ceased to function. His duties at the church include translating the sermon for Turkish members and reading the gospel during services. In her opinion and from her observations the applicant lives according to his beliefs and willingly and actively shares his faith and beliefs with others. From her knowledge and experience of the applicant he has followed a long path to now become a mature Christian who has genuinely accepted Jesus as his Lord.
The Tribunal has also considered extensive social media posts made by the applicant reflecting Christian beliefs made over several years under his pseudonym [Alias A].
The Tribunal has also considered a letterheaded letter from [Leader C] of the [Church 3 variant], dated 12 July 2020. In this letter [Leader C] submitted that the applicant joined the church because he was seeking greater understanding of Christianity through joining a Farsi speaking church. He was a regular attendee at Sunday services and Bible Study. He also volunteered his [occupation 1] skills to the church.
The Tribunal has also considered a letterheaded letter of support, dated 15 July 2020, from [Leader B] in which the Pastor states that the applicant was an attendee of [Church 1], [in Suburb 1] between June 2016 and June 2018 and was baptised [in] October 2016.
The Tribunal acknowledges the concerns of the delegate around the genuineness of the applicant’s conversion to Christianity, but for the following reasons the Tribunal has formed a different view.
The applicant has now been a regular attendee and member of Christian churches for over seven years. He has been baptised. He has also participated in outreach programs run by the churches, bible studies and volunteer work. As such he has been noted and observed undertaking these activities by each church for many years. While the applicant did move quickly to be baptised at an English language-based church, his subsequent journey reflects a consistent search for Christian knowledge by finding and engaging with churches using languages he was more familiar with. His religious engagement and learning in this regard appears to have been consistently pursued without pause since then. A finding that the applicant has been misrepresenting himself as Christian for such a long period of time in such a consistent manner, in the Tribunal’s view, should not be made lightly.
The Tribunal is satisfied that the applicant has been a regular attendee at Christian churches and has been accepted by the Pastors of those churches as a genuine convert. Each Pastor has given evidence as follows:
·The applicant has been a regular attendee and member of the congregation of [Church 2] since 2019. Before that he was a member of the [Church 3 variant] and before that a member of [Church 1].
·The main Pastor of each of the above churches has written a letter of support for the applicant in which they attested that the applicant was a regular attendee at church services. The two most recent Pastors also attested that the applicant undertook extensive further activities including Bible studies and volunteer work for their respective churches and in recent years recruitment of new members and evangelising.
·[Leader A], who has known the applicant for some years now, stated that from her observations of the applicant he has followed a long path to become a genuine Christian convert.

The Tribunal gives weight to the evidence of each of the above Pastors who have knowledge of the applicant and have been able to observe him over the course of many years now. The Tribunal accepts [Leader A] as a credible witness and accepts her evidence that the applicant has engaged in outreach and recruitment programs for the church.
With respect to the timing of the applicant’s conversion this was first started in 2016, which was well before the applicant first lodged a Safe Haven Enterprise visa application on 31 July 2017 and the further application lodged on 16 June 2020 and several years before any decision was made in relation to the applicant’s claims for protection. As such the Tribunal does not consider the timing of the start of the applicant’s path to conversion to be particularly suspicious. The Tribunal has also accepted that, prior to engaging with the Christian religion, the applicant had lost faith in Islam or alternatively had been non-practising for many years due to views formed in Iran about the intertwining of religion, politics and human rights abuses. In the Tribunal’s view this long-term disengagement with Islam makes it more plausible that the applicant would eventually undertake a spiritual journey of discovery resulting in an exploration of Christianity.
With respect to concerns about the registration of the [Church 3 variant] the Tribunal accepts as plausible that this church was working towards registration when the applicant joined it.
The Tribunal did not undertake questioning of the applicant’s faith, knowledge and reasoning behind his conversion, as the delegate did, as the Tribunal accepts that the applicant now has an intimate knowledge of the Christian faith through his many years of consistent engagement with the religion.
Risk on return to Iran – Christian convert
For the reasons set out above the Tribunal accepts that the applicant has converted to Christianity and that this was not conduct undertaken for the purpose of strengthening his refugee claim and that he has been practising that faith for over seven years and for the past four years at [Church 2].
With respect to the situation for Muslim converts to Christianity in Iran, DFAT relevantly assesses as follows:
2.80 Protestant (including Evangelical) and Pentecostal churches, which some asylum seekers join while they are in Western countries like Australia, are not legal. Conversions that took place after 1979 or conversions that take place outside Iran are not recognised by the government. A person who claims to be Christian, however cannot prove that their family was Christian before 1979, would be considered Muslim by the government and thus subject to apostasy laws.[4]
2.86 Prison or the death penalty are possible outcomes for Christians meeting in house churches, both leaders and everyday adherents. DFAT understands that while not a common punishment, prison or the death penalty for apostasy is possible. Years or even decades-long prison sentences are also possible. Changes were made to the Islamic Penal Code in February 2021 that mean that those guilty of ‘deviant psychological manipulation’ or ‘propaganda contrary to Islam’ could be found to be members of a ‘sect’, which can lead to imprisonment, fines, flogging or the death penalty. According to international or media reports, three Christians in the city of Karaj, near Tehran, were sentenced to total of nine years in prison under the new offences in August 2021.[5]
2.88 DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment. DFAT further assesses that, while their congregations are monitored and they are subject to restrictions, Christians from recognised churches are permitted to practise their faith. DFAT assesses that, except for their exclusion from senior government, military, intelligence and judicial positions, recognised Christians who do not engage in proselytisation activities face a low risk of official discrimination. DFAT assesses that those who convert while outside of Iran and who intend to continue to practise their Christian religion would face a high level of official discrimination and could be subject to the death penalty.[6]
[4] Ibid. p 20
[5] Ibid. p 21
[6] Ibid. p 21
In-country sources have told DFAT that returnees who maintain a low profile and who have not had an adverse profile previously are unlikely to come to the adverse attention of the Iranian authorities upon their return and this is not affected by social media posts they may have made while they were in a Western country.[7] However DFAT has also assessed that prison and the death penalty are currently possible outcomes for Christian worshippers meeting in groups to pray. The evidence before the Tribunal reflects that the applicant has consistently sought to engage in his faith as a member of a congregation and has also sought to undertake group Bible studies and to recruit and sermonise to new members of the faith. The Tribunal accepts that he would wish to practise his faith in a similar manner in Iran and that to be forced to renounce or cease the open practice of his faith to avoid harm from the Iranian authorities would be an impermissible modification of his behaviour for the purposes of s 5J(3)(c)(i).
[7] Ibid. p 21
The Tribunal finds, that if the applicant were to return to Iran and openly practise his Christian faith, there would be a real chance of harm if his conversion were revealed to the Iranian authorities. The Tribunal finds that harm constitutes ‘serious harm’ involving systematic and discriminatory conduct for the essential and significant reason of his Christian religion for the purposes of ss 5J(4) and (5). As the persecutor is the Iranian state, effective protection is not available to him and the real chance of persecution relates to all areas of Iran, and so ss 5J(2) and (3) do not apply to him. For the reasons set out above, the applicant’s conduct in Australia is not to be disregarded under s 5J(6). Therefore the applicant meets the definition of a refugee set out in s 5J(1) and satisfies s 36(2)(a) of the Act.
The Tribunal has noted the claims that the applicant will be persecuted for reason of his political opinion, adverse attention from the authorities due to a relationship with a girl and mental health problems. The Tribunal discussed these issues with the applicant, however given its findings above, it is unnecessary to determine these matters.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).
Paul Noonan
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 4832

8 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Statutory Construction