2014259 (Refugee)

2014259 (Refugee) [2024] AATA 4341 (22 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Sheri Enkeshafi (MARN: 0958723)
CASE NUMBER: 2014259

COUNTRY OF REFERENCE: Iran
MEMBER:Rachel Da Costa
DATE:22 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 August 2024 at 12:39pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – conversion to Christianity – particular social group – returned asylum seeker – fear of detention – fear of killing – mental health issues – church activities in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 48, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
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 16 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Iran, applied for the visa on 8 July 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
Procedural history
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] May 2013. 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 Migration Act 1958 (Cth) (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 was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 9 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Safe Haven Enterprise visa on 8 September 2016 (the first visa application). No decision has been made by a delegate of the Minister whether to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. On 26 June 2020, the applicant was invited to apply for a second visa and on 8 July 2020 he made a second application for a Safe Haven Enterprise visa on 8 July 2020 (the second visa application). This was a valid application and is not subject to any of the statutory bars.
This second visa application was refused by a delegate on 16 September 2020 and it is that decision which is the subject of this application for review.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following relevant information. He was born in Tehran, Iran in [specified year] and he is a citizen of Iran. His parents live in Iran, along with [specified family members]. He is in contact with them weekly by phone. He speaks, reads and writes Persian. His religion is Christian.
While in Iran, the applicant always lived at the same address in [District 1], Tehran. After finishing school, he studied at [School 1] and then worked managing a [business].
The applicant departed Iran legally [in] April 2013 using his Iranian passport. He arrived in Australia by boat.
Evidence before the Department and the Tribunal
Claims for protection
In a written statement attached to his protection visa application form, the applicant explains that while he has made claims for protection in the past, currently his biggest concern about returning to Iran is that he has converted to Christianity.
In his written statement, the applicant claims as follows:
·     He was born a Muslim but found it difficult being forced to follow a religion in Iran;
·     He enjoyed the freedom of choice to learn about Christianity in Australia;
·     A close friend evangelised him and introduced him to bible study classes held in [Suburb 1] in Sydney;
·     He started attending bible classes regularly;
·     He was baptised [in] July 2017;
·     Being baptised gave him a feeling of belonging to the Christian family and he has continued to attend bible study classes as well as church on Sundays at [Church 1];
·     He evangelises to friends and people at [local venues] and promotes Christianity on his [social media] page. He will continue to evangelise because that is God’s wish;
·     If he returns to Iran he will continue to practise his religion;
·     He fears returning to Iran because of his status as a Christian convert and he will not be safe anywhere in the country from the government authorities.
Interview and the delegate’s decision
On 25 August 2020, the applicant attended an interview with the Department to discuss his claims for protection. On 16 September 2020, the delegate made their decision. The delegate accepted that the applicant had engaged in Christian activities and had been baptised but the delegate found he had not demonstrated a genuine and ongoing commitment to the religion. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations.
Documents provided in support of the applicant’s religious conversion claim
The applicant has provided a range of documents to the Department and Tribunal in support of his claim to be a Christian. Relevantly, these documents include:
·     Screenshots of the applicant’s public [social media] posts about Christianity, showing Christian images, some with comments in Arabic, as well as images entitled “bible study” or showing a prayer emoji and the date showing the applicant in what appears to be a classroom or church hall. These images are sometimes accompanied by a page of text with discussion questions and biblical references. These images range in date from 2018 to 2024;
·     Photos of the applicant distributing Christian material to letterboxes and outside a shopping centre, along with a photo of him with the Pastor from his church, [Church 1], in 2020;
·     The applicant’s certificate of baptism dated [in] July 2017;
·     Letter of support from [Pastor A] of [Church 1] dated 26 July 2020 confirming the applicant’s baptism and his attendance at church and participation in multiple bible study classes and completion of various courses conducted by the church on different aspects of Christianity;
·     Various written records showing dates of the applicant’s attendance at church bible study classes on different subjects from the period 2017 through to 2024;
·     Select pages from the applicant’s Persian bible with highlighted passages and annotations showing the dates he studied particular passages of the bible;
·     Letters of support from members of the applicant’s church community from December 2023 and January 2024 attesting to the applicant’s religious beliefs and his active membership of the church community since 2017;
·     Letter from [a named] Psychologist, dated 27 May 2024 providing the professional diagnosis that the applicant suffers from Major Depressive Disorder, Post-Traumatic Stress Disorder and Generalised Anxiety Disorder and that these conditions have been exacerbated by the waiting period for resolution of his visa status.
Statutory declaration of the applicant dated 16 July 2024
Prior to the Tribunal hearing, the applicant provided a Statutory Declaration responding to the delegate’s decision. In summary, in his Statutory Declaration he makes the following points:
·     He has poor mental health and his religious faith is the reason he has been able to survive;
·     He does not wish to discuss his past claims for protection but he does want to discuss his faith-based claims which form the basis of his claim for protection;
·     He does not agree with the delegate’s reasons for rejecting his claims;
·     He believes in Jesus and his faith and journey are unique to him. He is a genuine convert and tries to live his life as a Christian, which is not easy;
·     He will not be able to practise his Christian faith freely in Iran and he will not pretend to be a Muslim there or follow Islamic rules;
·     When he departed Iran in 2013 he was a non-practising Muslim but he still believed in the existence of God;
·     He has rejected Islam and is against the Iranian government;
·     He has continued to attend the [Church 1] since 2017, he was baptised there, and is happy with that church, the pastor and its teachings. He continues to attend church and bible study classes regularly and shares the gospel with others;
·     His family in Iran are aware of his conversion and his mother is accepting of this.
Pre-hearing submissions
On 24 July 2024, the applicant’s representative provided written pre-hearing submissions to the Tribunal. The submissions confirm the applicant’s nationality and go on to critique the delegate’s findings by reference to the applicant’s past and current conduct. The submissions go on to explain the reasons why the applicant fears harm if he returns to Iran. These reasons are his conversion to Christianity, his actual and perceived political views and his membership of the particular social groups of apostates with perceived political views who evangelise Muslims and failed asylum seekers returning to Iran. It is submitted that the harm the applicant would suffer would amount to serious harm and so he has a well-founded fear of persecution. The submissions refer to country information about the situation for political and religious dissidents in Iran and the risks they face. Sources referred to include the Australian Department of Foreign Affairs and Trade, Amnesty International, United States Department of State and Freedom House. It is submitted that the applicant has a well-founded fear of persecution, the Iranian authorities would be unwilling to protect him, he cannot modify his behaviour, and he cannot relocate within Iran to an area where he would not be at risk of persecution. It is also submitted that the applicant faces a real risk of significant harm in Iran for the same reasons as he faces a real chance of serious harm.
The hearing
The applicant appeared before the Tribunal on 9 August 2024 to give evidence and present arguments. 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 and his representative attended the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal hearing, the Tribunal discussed with the applicant his background, family, education and employment, religious upbringing, religious beliefs and practices and why he fears returning to Iran. The applicant gave his evidence in a clear, straightforward and self-reflective manner. The Tribunal did not have the sense that he was attempting to embellish his evidence. The applicant’s evidence about his faith journey was broadly consistent with what he told the delegate about his religious conversion (up to that time) and the later evidence contained in his Statutory Declaration. The Tribunal had the sense that since the applicant spoke to the delegate, his knowledge of Christianity and understanding of his faith has deepened which is understandable given the passage of time and the applicant’s ongoing practise of his Christian faith.
In the hearing, the applicant spoke clearly about his pretence of following Islam in Iran as that is what he was expected to do, and his discomfort with this. He also explained that despite this, he always believed in the existence of God as a creator so he had not entirely rejected religion. He confirmed that he knew nothing about Christianity before coming to Australia.
The applicant explained how in the first few years after arriving in Australia he had become depressed and sick, so in 2017 when a friend invited him to attend a bible study class because it might make him feel better, he agreed. The applicant explained how the kindness he was showed by the pastor and the other people at the class, as well as his feeling of being prayed for and not judged, had a great impact on him. He left the class feeling good and wanted to return and know more, which is what he did. He was able to explain to the Tribunal some of the aspects of Christianity that appealed to him compared to Islam, such as the ability to choose whether or not to be Christian, to ask questions, to challenge beliefs, and the difference in how women are viewed. The applicant explained, with reference to a verse from the Bible, why he had embraced Christianity and agreed to be baptised so quickly after first attending church, and how by that time he felt Jesus in his heart and no longer felt alone but rather, part of the Christian family. The applicant spoke about how he lives his faith on a daily basis, both spiritually and practically, and the positive effect it has had on his mental health and sense of well-being, including in his interactions with other people. He was also able to articulate why his faith was important in this regard, rather than these benefits simply being the result of being part of a community.
The applicant explained that the reason he first attended the [Church 1] is because he was invited by a friend and that he has continued to attend that church and the bible study classes because he enjoys it and there is always a Farsi interpreter, so he hasn’t found it necessary to attend a different church or explore other denominations of Christianity because what he has found is enough for him. He gave evidence that he attends bible study and church every week unless he is sick or is called to work.
The applicant described the types of activities he is involved with as part of the church in addition to his worship, which includes evangelising to people in public. He said he does this about once a month with other people from the church. He confidently told the Tribunal the types of things he says to people when he approaches them in public and how he follows up with them if appropriate. He spoke frequently of the Holy Trinity, what it means and why it is important for him as part of his faith, as well as recounting the Lord’s Prayer. He posts religious material on his [social media] account, which is public, in the hope that people in Iran who don’t dare go to church might see it. He also spoke about how his faith has developed over time. He assured the Tribunal that he has accepted Jesus and intends to remain a part of the Christian family. It said his embrace of Christianity is the most important event in his life and it will continue to be so. He hopes in the future to marry and build a Christian family of his own.
Based on the applicant’s oral and documentary evidence, the Tribunal is satisfied that his Christian faith is genuine, that he has been regularly attending the [Church 1] and bible study classes since 2017, that he is involved in various church activities and evangelises to people in public on a regular basis, and that his Christian faith is an important part of his life.
Does the applicant meet the refugee criterion?

The applicant claims to fear returning to Iran on the basis of his conversion to Christianity and the fact that he will continue to practise his faith there. He fears being arrested, imprisoned and possibly killed by the Iranian authorities as a result of his religious faith.
The applicant gave evidence that if he had to return to Iran he would continue to practise his Christian faith, which would include evangelising and attending church, although he acknowledged that he would not be able to attend church like he does in Australia because of the restrictions. His evidence made it clear that he would not conceal his Christian faith in Iran. The Tribunal accepts this.
The applicant’s evidence about how he would practice his Christianity in Iran as a Christian convert, which the Tribunal accepts, and the consequences he fears as a result is consistent with country information available to the Tribunal. The current DFAT Country Information Report Iran[1] states about Christians in Iran:
[1] 24 July 2023.
Christians
2.79 There are a small number of recognised Christians in Iran: 117,700 according to government figures quoted in the US Department of State’s 2021 Religious Freedom Report, and up to a million according to Christian groups. The majority of Christians are ethnic Armenian and Assyrian. Chaldean and Roman Catholic communities also exist in small numbers.
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.
2.81 The activities of recognised Christian communities are closely regulated, to guard against proselytisation. Recognised Christian groups refuse to proselytise as a result, and in-country sources told DFAT this resolve is tested regularly by authorities. All Christians and Christian churches must be registered with the authorities, and only recognised Christians can attend church. Security officials closely monitor registered churches to verify that services are not conducted in Farsi (they must be performed in the traditional language of the Church and not the vernacular) and perform regular identity checks on worshippers to confirm that non‑Christians or converts do not participate in services. Churches that do not comply face closure.
2.82 Community leaders associated with registered churches report authorities respect their religious rights, and their communities can act freely in their own spaces without government interference (including holding mixed-gender gatherings, using alcohol for ceremonial purposes and allowing women to uncover their heads). However, in-country sources report that the government restricts their community members from senior management roles in public and private organisations due to an Iranian law that prohibits non-Muslims from holding positions of authority over Muslims. This means that the heads of Christian schools Shi'a Muslims appointed by the government.
2.83 Iranian Christians who are not members of recognised churches generally practise in underground ‘house churches’. House churches are usually Evangelical Protestant and are found throughout the country, but especially in more affluent and cosmopolitan areas. Numbers of house church adherents are not known because these churches are secret and illegal. The Joshua Project, an Evangelical ministry from the United States that publishes information for missionaries, estimates 0.52 per cent of the population is Evangelical Christian. In 2019, UN Special Rapporteur Rehman estimated that there were between 300,000 and 350,000 Muslim converts to Christianity. In-country sources told DFAT in 2019 that the number of underground Christians was growing, and Christians may travel to Turkey (with which Iran has visa-free arrangements) to be baptised then continue to practise their religion in secret. Reasons for conversion vary, but local sources told DFAT that it may be an earnest desire to explore their own spirituality, or it may be a subtle form of protest against the government. DFAT has been unable to source more recent figures on Christian conversions.
2.84 House churches vary in size, style and structure. Most are small and informal, and consist of close family and friends gathering on a regular or semi‑regular basis to pray, worship, read the Bible and/or watch Farsi Christian television programs broadcast via satellite or discs smuggled from abroad. Foreign Christian missionaries, to which asylum seekers may have links, may participate in Iranian Christianity through house ‘internet pastors’ who preach and conduct services remotely via the internet. Local Christian leaders and adherents may be foreign trained while overseas.
2.85 Authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. Congregants regularly change houses to avoid detection. Raids focus particularly on house churches that actively proselytise or seek out new members. Sources told DFAT authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours. Other sources say the government sends people posing as converts to infiltrate house churches.
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.
2.87 In-country sources told DFAT that returnees who have not had a profile previously (for example through political activism in country) are unlikely to come to attention of authorities if they keep a low profile, and that this is not affected by social media posts about their conversion that they may have made while they were in a Western country like Australia.
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.
This country information about the treatment of Christians generally and Christian converts more specifically is also supported by information from other independent, credible sources such as the Canadian Immigration and Refugee Board,[2] the UK Home Office Country Policy and Information Note Iran: Christians and Christian converts (UK Home Office Report),[3] and the US Department of State 2022 Report on International Religious Freedom: Iran.[4]
[2] Iran: Situation and treatment of Christians by society and the authorities, 9 March 2021, IRN200458.E, Research Directorate, Immigration and Refugee Board of Canada
[3] September 2022
[4]
The UK Home Office Report states at 2.4.6 that:
In general, a person who is found to have converted to Christianity and who seeks to openly practice their faith in Iran, are likely to be subject to treatment or discrimination by the state that is sufficiently serious, by its nature or repetition, to amount to persecution.
It goes on to state that this is particularly the case if a person is a church leader or evangelises. In the Tribunal’s view, as a Christian convert who would seek to openly practice his faith in Iran, including by evangelising as he has been doing in Australia, this would be the situation for the applicant.
In the Tribunal’s view, based on its findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his religion and there is a real chance that he would be persecuted for reason of his religion if he returned to Iran in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of Iran.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his religion, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and a threat to his liberty.
Given it is the Iranian State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Iranian State and that the Iranian State is not willing to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Iran.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Iran because a modification would require him to alter his religious beliefs or conceal his true religious beliefs or cease to be involved in the practice of his faith. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his religion in Iran.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
The Tribunal is satisfied that the applicant does not have the right to enter and reside in another country for the purposes of s 36(3).
Conclusion
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.
Rachel Da Costa
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.
…

[2024] AATA 4341

22 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies