2016555 (Refugee)

2016555 (Refugee) [2023] AATA 4017 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ehsan Azadi (MARN: 1279450)
CASE NUMBER:  2016555
COUNTRY OF REFERENCE:                   Iran
MEMBER:David James
DATE9 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 August 2023 at 12:51pm
CATCHWORDS
REFUGEE – Protection Visa –Iran – actual or imputed political opinion – anti-Iranian government demonstration – production of fraudulent documents – membership of the particular social group – a divorced non-religious westernised women returning from a western nation without a male protector – a person with knowledge of and/or holding information of the creation of fraudulent academic records for the issue of false PHD’s to Iranian officials – being a westernised women returning to Iran – applicant cannot change or modify her behaviours and thus change who she now is as a person – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 65, 499
Migration Regulations 1994, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 10 November 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 22 November 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 12 November 2020. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with their application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 7 August 2023 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.
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.
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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the protection visa application, the applicant claims to be citizen of Iran and provided a copy of her Iranian passport and Iranian identity card, based on this material the Tribunal finds that the applicant is who she says she is, and a national of Iran. Iran is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Issues
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Iran she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·the applicant’s protection visa application form (22 November 2019) and the accompanying identification documents and supporting evidence documents and their English translations;
·applicant’s ‘Statement of Claims’, dated 10 November 2019;
·letter of support under the hand of [name] of [an] Association, dated 20 November 2019;
·applicant’s representative’s written submissions, dated 26 July 2022 and annexed exhibits (39) including the applicant’s Statutory Declaration dated 19 November 2019, received by the Tribunal on 3 August 2022;
·applicant’s representative’s supplementary written submissions addressing changes in the applicant’s circumstances, dated 3 November 2022 and supporting documents, received by the Tribunal on 3 November 2022;
·applicant’s representative’s 2^nd supplementary written submissions addressing additional changes in the applicant’s circumstances, dated 30 March 2023 and supporting copies of photographs depicting the applicant purportedly attending a demonstration, received by the Tribunal on 30 March 2023;
·applicant’s representative’s 3^rd supplementary written submissions addressing additional changes in the applicant’s circumstances, dated 2 August 2023 and a supporting letter from [a] University ([UNIVERSITY 1]) confirming the applicant’s employment as an [occupation] at the university from 4 November 2012 to 24 October 2019;
·applicant’s application for review (12 November 2020) and attached protection visa decision record of 10 November 2020;
·department administrative and movement records of the applicant; and
·copies and translations of two emails sent to the applicant from the [UNIVERSITY 1]’s [Position 1] dated 14 May 2020 and 4 February 2021.
Claims for protection
The applicant in her statement of claims of 10 November 2019 which was annexed to her application for the visa stated that she had attended school in Iran, and had then completed studies [at] [a] University [and] later completed a [qualification] at [another] [University], graduating in 2012. She states that she had married her husband in 1989 and that they have two children then aged [age] years and [age] years. Her daughter now resides in Australia. She states that she lived in [City 1] in [COUNTRY 1] from 2006 to 2019 where her husband was working for the Iranian government. Between 2012 and 2018 she worked at the [City 1] branch of the [UNIVERSITY 1]. She made the following claims for protection (in summary):
·that at the direction of the [Official 1] of the [UNIVERSITY 1] she was involved in the collation of false academic papers and records of supposedly enrolled Iranian officials in PHD studies;
·that in 2016 the applicant at the direction of the [Official 1] of the [City 1] branch of the [UNIVERSITY 1] attended the [City 2] branch of the [UNIVERSITY 1] whilst she was on leave in [Country 2]. There she scanned academic documents and financial documents over a two-day period in the presence of the [City 1] [Official 1] and the [UNIVERSITY 1]’s [Position 1]. At the completion of the scanning the [Official 1] gave her a hard drive and she transferred the scanned material to that drive, and then deleted the original records on the [UNIVERSITY 1] computers at the [City 2] branch;
·that she has been contacted and harassed by a representative of eight Iranian senior government officials who allege they had paid the [City 1] [Official 1] of the [UNIVERSITY 1] for PHD’s, and as his [staff], she is responsible for finalising those qualifications for these officials;
·that she is non-religious;
·that her religious views have caused many problems in her marriage as her husband is religious and works for the Iranian [government].
·That her husband has always been very controlling of her;
·that her marriage has broken down and her husband would be a threat to her and would report her to the Iranian authorities as he has knowledge of her role with the [Official 1] of the [City 1] branch of the [UNIVERSITY 1] in relation to the false academic records and promise to issue false PHD’s to the eight Iranian officials; and
·that she is of risk of official discrimination, surveillance, harassment, travel bans, arrest, prosecution and imprisonment in Iran because of her involvement in demonstrations in Australia as to women’s rights arising from the death Jina Mahsa Amini’s in custody in Iran (new claim raised in the supplementary submission of 30 March 2023).
Department interview
The applicant was interviewed by the Department on 30 September 2020.
Delegate’s decision
The delegate’s decision of 10 November 2020 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant is non-religious and that she was a resident in the [COUNTRY 1] from 2006 to 2019. However, the delegate did not accept that the applicant had worked at the [UNIVERSITY 1] in any capacity from November 2012 to early 2019, and that she had been involved in the production of fraudulent documents, or that she had been harassed by a representative of some Iranian officials in relation to their PHD’s at anytime or that she had been involved in the scanning of [UNIVERSITY 1] documents at [City 2] in [Country 2]. The delegate also did not accept that the applicant’s marriage had broken down and that her husband had been controlling of her and would be a threat to her or turn her into the Iranian authorities if she was to return to Iran. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 14 July 2023 the Tribunal invited the applicant through their then nominated representative to attend a review hearing at the Brisbane Registry on 7 August 2023 at 12:30 pm. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing – 7 August 2023
The Tribunal hearing was conducted at the Brisbane Registry in the Persian (Farsi) and English languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that she understood the criteria as it had been explained to her by her representative. However, after discussing the applicant’s understanding of the criteria with her representative, the Tribunal provided a short outline of the refugee and complementary protection criteria to the applicant who then acknowledged that she understood same.
The Tribunal informed the applicant and her representative that after reviewing her evidence (documents) and the primary submissions of her representative, together with the annexed supporting 39 exhibits as outlined above at paragraph 17, that the Tribunal was satisfied as to the facts of her matter including that:
·the applicant is non-religious;
·the applicant’s husband is religious and an Iranian government official;
·the applicant’s husband had and continued to be controlling of her;
·the applicant had relocated with her husband to the [COUNTRY 1] from Iran in 2006 where her husband worked for the Iranian government;
·her husband had organised work for her at the [UNIVERSITY 1] as the [City 1] [Official 1]’s[staff] where she worked in that role from 2012 to 2019;
·the applicant had at the direction of the [Official 1] become involved in the production of fraudulent academic records for eight senior Iranian government officials and the proposed issue of fake PHD’s for those officials;
·the applicant whilst on holidays in [Country 2] had at the direction of the [Official 1] attended the [City 2] campus of the [UNIVERSITY 1], where she scanned financial and personal documents relating to the issue of PHD’s from the [UNIVERSITY 1] computers onto a hard drive, which in the presence of the [UNIVERSITY 1]’s [Position 1] she gave to the [City 1]i [Official 1]. Then at his direction she deleted the original records from the [UNIVERSITY 1]’s computers;
·the applicant has been contacted and harassed indirectly by unknown persons acting on behalf of the eight Iranian senior officials, who are asking for their PHD’s to be issued after the [Official 1] was replaced at the [UNIVERSITY 1];
·the applicant has also been contacted directly and indirectly by the [UNIVERSITY 1]’s [Position 1], who has been asking for the hard drive of records (which the applicant had scanned and provided to the [Official 1] in the presence of the [Position 1] in [City 2]), possibly in an attempt to shift blame and create or substantiate a belief that the applicant retains these records; and
·the applicant has divorced her husband in Australia which may not be recognised in Iran as such proceedings were not commenced by him, and that he may turn her into the Iranian authorities in relation to her involvement in the production and proposed issue of fake PHD’s to the eight Iranian officials.
A such the Tribunal proposed to conduct the hearing by asking questions of the applicant as to matters going to the question of the ‘real chance’ and ‘real risk’ tests. In that regard, the Tribunal further explained that on the evidence before it, the Tribunal accepted that the applicant held subjective fears of harm based on her involvement in the false PHD’s and being a westernised women returning to Iran.
The applicant and her representative agreed to the proposed conduct of the hearing and the Tribunal proceeded to ask its questions of the applicant.
The applicant told the Tribunal that she travelled to Australia most recently in September 2019 to visit her sister in Brisbane, who works as a [occupation] at a [workplace], and her daughter who works as a [occupation] [for] [an employer]. She told the Tribunal that her other child, her son lived and worked [in] the United States where he is working as a [occupation].
In reply to the Tribunal, she said that both her children had no intentions of returning to Iran.
She explained that while in Australia she had received further calls from the representative of the Iranian officials as to her knowledge of, an ability to have their PHD’s, which they had paid for, issued by her employer the [UNIVERSITY 1]. Additionally, she had at this time also been contacted by the [Position 1] of the university through work colleagues and directly via social media asking about the hard drive of academic, personal and financial records that related to the [UNIVERSITY 1] issue of PHD’s, and specifically to the records relating to the eight Iranian officials who had paid for PHD’s.

The applicant told the Tribunal that given the fears she held as to her safety arising from her knowledge of the false PHD records and the payments for such qualifications having been made by the eight senior Iranian officials, together with her separation from her controlling husband she had made her application for protection whilst visiting family in Australia.
In reply to further questioning, she explained that after arriving in Australia she had obtained employment with an [employer] and had risen through the ranks to currently being a [manger]. She further explained that she had divorced her husband through the Australian Courts but was concerned that her husband would be displeased as under Iranian law the husband can only initiate a divorce. She also said that she had had no contact with her former husband since leaving [City 1] and was not aware whether he was living in [City 1] or in Iran, or still traveling between the two locations.
As to her relatives still in Iran, she told the Tribunal that her father passed away in 1979 and her mother who still resided in Iran was [age] years of age. She explained that her brother is a retired [occupation] and resides with his family while one of her sisters still in Iran is a [occupation] and married with children. Her other Iranian sister is not working but also has a family. She said that although her family in Iran are not very religious, none of them would be able to protect her from the government, any of the eight officials involved in the fake PHD’s, or her husband as they had no political connections and had their own families to look after.
With reference to the applicant’s statement of claims the Tribunal asked the applicant when she had last been contacted by the eight officials as to their PHD’s. The applicant in reply said she had last been contacted by them in 2019. She said that they had started calling her after the [City 1] [Official 1] had been removed in 2017, and that overall, she had received 5 to 6 direct calls from their representative. However, she said she had also had a call in August of 2022 where she had tried to explain to the caller that the [Official 1] had been removed after the caller told her to contact the [Official 1] and have him issue the PHD’s which had been paid for by the eight Iranian officials.
As to her most recently issued passport in 2018, she explained that she was at that time still working for the [UNIVERSITY 1] and her husband had provided a letter for the issue of her new passport notwithstanding that they had been effectively living apart since their separation under the same roof in 2014. She explained that her husband in his Iranian government role travelled between Iran and [City 1] often staying in Iran for extended periods before returning to [City 1] where he stayed at the family home, where she and their two children lived. She explained that she was unable to leave her husband permanently until her children were safely established outside of [City 1] and Iran. She explained that both of her children completed their schooling and undergraduate studies in [City 1] before they both left for Australia and [a country] in 2017 and 2018, where they respectively completed further studies and obtained employment.
As to her evidence that after 2017 she had experienced more pressure from the eight Iranian officials, she explained that she had received calls either directly from the representative of the eight officials or had received enquiries and requests for her to make contact with the former [Official 1] and/or the [UNIVERSITY 1]’s [Position 1] through other mutual colleagues from the [City 1] campus of the [UNIVERSITY 1].
In response to further questioning the applicant explained that she was not a religious women and had since leaving [City 1], dressed in a westernised manner and did not believe she could return to a life in Iran where women were seen as the property of men and were forced to dress in accordance with the Islamic dress code. She explained that her westernised mannerisms and dress were a part of her, and that she was now an independent woman and as such these characteristics were now part of her innate personality, and identity.
After being provided a break and an opportunity to review and consider the country information that the Tribunal was proposing to rely upon, the applicant and her representative indicated to the Tribunal that the information was correct.
Country information
The Tribunal has taken into account the DFAT Country Information Report Iran, 24 July 2023, as relevant, including the information under the heading of ‘Corruption’ at 2.16 where it is stated that:
Corruption is widespread and a major barrier to economic activity. Iran is a State Party to the UN Convention against Corruption, and Article 3 of the Iranian Constitution commits the government to fighting all forms of corruption. While Iran has a range of anti-corruption laws and agencies, ultimately these have little effect in a system structured around transferring large amounts of wealth to Iran’s elite including the Supreme Leader himself. Iran ranked 147^th out of 180 countries in Transparency International’s 2022 Corruption Perceptions Index. GAN Integrity notes a high risk of corruption in the judiciary, police, public services (acquiring licences, utilities), land administration, tax and customs, public procurement and the natural resources industry. Corruption takes the form of irregular payments, cronyism and embezzlement. Officials may expect bribes to conduct routine services.
Under the heading of ‘Atheists and Secular or Non-Practising Muslims’ at 2.99 to 2.102 where is provides that:
In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.
Those who publicly renounce Islam face apostasy charges (see Atheists). According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.
DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.
‘Women’ at 2.129 to 2.144, where at 2.129 to 2.130, 2.132 to 2.133 and 2.144 it is stated that:
Wearing the hijab is compulsory. By law, women must have their entire body covered except for face, hands and feet. Some women wear the scarf around their neck or use another form of head covering (for example, a hat). Such women risk arrest, particularly during periodic crackdowns. Younger women are more likely to wear their headscarves in this way. Morality police patrols in public places increased in 2022. Following the protests and outcry sparked by the death of Mahsa Amini at the hands of the morality police, they withdrew from the streets. The morality police have been disbanded but there is little sign that enforcement of hijab laws has ceased, with authorities using denial of services in banks and shops and airports as one way to ensure compliance.
Sources told DFAT in 2019 that enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat). In 2019 and more recently, authorities closed a number of restaurants and cafes due to non-observance of the Islamic dress code since and police reportedly monitor women for wearing their hijabs inappropriately or not at all while travelling in vehicles. Where a female is detected with ‘bad hijab’ inside a vehicle, the owner of the vehicle receives an automated text message instructing them to report to a police station and sign a declaration undertaking not to wear or tolerate ‘bad hijab’ again. According to local sources, repeat offenders incur a fine and, concurrently, are requested to settle any outstanding traffic infringements. A failure to do so can result in the impounding of one’s car and potential suspension of licence until all outstanding fines are settled.
Men exert considerable control over women in marriage. For example, women can legally be prevented from leaving the country without permission from their husbands. Husbands can prevent their wives from working if their chosen work is incompatible with the husband’s ‘dignity’. Girls can be married as young as 13 (15 for boys) but marriage is possible at any age with the permission of a judge and the father of the child. DFAT understands several thousand girls under 14 are married, several hundred of whom have children of their own. Human rights organisations have reported an increase in the number of girls as young as nine years old marrying, which they assess may be a consequence of increased economic hardship among rural and poor families.
For a woman to get a divorce she needs permission from her husband, or evidence he breached the marriage contract, is addicted to drugs, is ‘insane’ or impotent. Men do not need a reason for divorce. Men can have up to four wives, however women can only have one husband.
Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.
‘Islamic Revolutionary Guards Corp (IRGC) at 2.187 to 2.188 where it states that:
The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. The IRCG was established as a guardian of the 1979 revolution’s values and played a key role in the early days of the Republic. It is now Iran’s preeminent internal and external security force with an army, navy and air force, which it operates separately from the regular military, and also has cyber and intelligence wings. The IRCG’s associated companies in the banking, communications, construction, shipping and other sectors play a significant role in the economy. There are around 150,000 to 200,000 members of the IRGC across various divisions.
The IRGC helped to suppress the Green Movement demonstrations in 2009 and, together with other parts of the security apparatus, played a role in responding to the December 2017, January 2018 and November 2019 protests. International media reports and leaked documents point to IRGC involvement in more recent protests and planning to crack down on protests before price rises took effect in 2022, for example. Following the election of President Raisi, the IRGC is playing an ever-increasing role in politics, including many former IRGC officers now holding senior political appointments.
‘Exit and Entry Procedures’ at 2.205 to 2.209 where it provides at 2.207 and 2.209 it is stated that:
Government authorities can impose travel bans on Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may also be subjected to travel bans. Husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. Intelligence and law enforcement services have the power to impose travel bans without judicial oversight. (See Judiciary) Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.
And ‘Prevalence of Fraud’ at 2.217 and 2.218 where at 2.218 it is stated that:
Secondary forms of documentation, like military exemption cards, are technically more vulnerable to fraud, as they have less robust security features, but are expensive to obtain. Paper-based documents, including court documents, summonses, bank letters, real estate documents and tertiary certificates, are relatively easier to obtain through fraudulent means.
The Tribunal has considered the media and country reports referred to the in the applicant’s submission of 26 July 2022 as to the issue of false academic qualification in Iran. Additionally, the Tribunal has also conducted its own research of media and country information relating to the issuing of fake tertiary qualification in Iran and notes that in the Iran Focus report ‘Iran: Widespread Corruption, Fake Diplomas, PH.Ds. sold at $9000 of 13 November 2021 it is reported in part that:
Corruption in the issuing degrees of education
One might think that it is a hard and illegal thing to search and find centers that are issuing a degree for a ministry or bachelor or a Ph.D. But in Iran, that is not the case and without much effort, one can find centers that are operating officially, and most of them are even under the control of the government. The official slogan of most of them is ‘we will fulfill your wish’ or ‘with this degree we hope that you will be able to upgrade your job position.’They ask, ‘do you have enough time to continue your education? Are you searching for a degree of education?’ These institutions claim officially that they can provide any degree, the customer only needs to choose the field. They even present some of their works to the customers on their websites. This action hurts society and upends social values and norms. There will be no more effort for learning and the country will face a lack of real specialists. Society will become a structure without any basement.
The Mostaghel newspaper on November 2, 2021, in an article in this regard, wrote: ‘Advertisements for the sale of education degrees are also freely available on social networks.’
Sale of all education degrees by an official inquiry
o   Professional technical diploma: 2 million Tomans
o   High school diploma: 3 million Tomans
o   Azad University Associate: 6 million Tomans
o   Bachelor of Azad University: 9 million Tomans
o   Master’s degree: 15 million Tomans
o   Doctorate with design and dissertation: 38 million Tomans
Some 50% is received as an advance payment before the work for the administrative affairs of the university from the customer. Upon receipt of the document and dissatisfaction, the entire amount will be returned to your account.[1]
[1] Iran Focus, Katiraie, J, ‘Iran: Widespread Corruption, Fake Diplomas, PH.D.s sold at $9000, 13 November 2021 - Iran: Widespread Corruption, Fake Diplomas, Ph.Ds. Sold at $9000 - Iran Focus
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[2] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[3] This is consistent with the established proposition that it is for the applicant to make his or her own case.[4]
[2] Section 5AAA of the Act.
[3] Ibid (with effect from 14 April 2015).
[4] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[5] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[6]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[5] Fox v Percy (2003) 214 CLR 118
[6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[7] A similar approach is taken in the Department’s Refugee Law Guidelines[8] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[9] which provides useful guidance for this Tribunal.
[7] SZLVZ v MIAC [2008] FCA 1816 at [25].
[8] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[9] UNHCR, re-issued February 2019 at [203]–[204].
Analysis
The Tribunal found the applicant to be a forthright witness who replied to the Tribunal’s questioning without hesitation and/or delay. The Tribunal found that the applicant’s responses to the questions of the Tribunal were consistent with her evidence as outlined in her statement of claims and her statutory declaration. This evidence was supported by and corroborated by the 39 annexed exhibits that provided a history of contact and attempted contact with the applicant by the former [Official 1] of the [City 1] campus of the [UNIVERSITY 1] and the University’s [Position 1], together with an unknown person apparently enquiring as to the issue of and the demand for, the issue of PHD’s that had been paid for by some senior Iranian officials.
The Tribunal as outlined above at paragraph 24 is satisfied on the evidence before it that:
·the applicant is non-religious;
·the applicant’s husband is religious and an Iranian government official;
·the applicant’s husband had and continued to be controlling of her;
·the applicant had relocated with her husband to the [COUNTRY 1] from Iran in 2006 where her husband worked for the Iranian government;
·Her husband had organised work for her at the [UNIVERSITY 1] as the [City 1] [Official 1]’s [staff] where she worked in that role from 2012 to 2019
·the applicant had at the direction of the [Official 1] became involved in the production of fraudulent academic records for eight senior Iranian government officials and the proposed issue of fake PHD’s for these officials;
·the applicant whilst on holidays in [Country 2] had at the direction of the [Official 1] attended the [City 2] campus of the [UNIVERSITY 1] where she scanned financial and personal documents relating to the issue of PHD’s from the [UNIVERSITY 1] computers onto a hard drive which in the presence of the [UNIVERSITY 1]’s [Position 1] she gave to the [City 1]i [Official 1]. Then at his direction she deleted the original records from the [UNIVERSITY 1]’s computers;
·the applicant has been contacted and harassed indirectly by unknown persons acting on behalf of the eight Iranian senior officials who are asking for their PHD’s to be issued after the [Official 1] was replaced at the [UNIVERSITY 1];
·the applicant has also been contacted directly and indirectly by the [UNIVERSITY 1]’s [Position 1] who has been asking for the hard drive of records (which the applicant had scanned and provided to the [Official 1] in the presence of the [Position 1] in [City 2]) possibly in an attempt to shift blame and create or substantiate a belief that the applicant retains these records; and
·the applicant has divorced her husband in Australia which may not be recognised in Iran as such proceedings were not commenced by him, and that he may turn her into the Iranian authorities in relation to her involvement in the production and proposed issue of fake PHD’s to the eight Iranian officials.
Membership of a particular social group (PSG) of ‘a divorced non-religious westernised women returning from a western nation without a male protector’
The Tribunal having considered the provisions of s 5L of the Act which provides that a person is to be treated as a member of a PSG other than that person’s family if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. And that characteristic is innate, immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society; finds that the applicant is a member of a PSG being ‘a divorced non-religious westernised women returning from a western nation without a male protector’.
Having had the benefit to have observed the applicant in the hearing and in particular her responses to the Tribunal, her use of the English language, her mannerisms and dress, is satisfied that she has become a westernised women who enjoys her independence and her ability to work and independently support herself. Having had divorced from her husband at her instigation in the Australian Courts it is highly likely that such divorce proceedings will not be accepted in Iran and would be an embarrassment to her husband who is employed by the Iranian [government].
Given the applicant’s evidence that her westernised dress, manner and economic independence is now a part of her identity and is innate and immutable to her self-understanding and personality, the Tribunal is satisfied firstly, that the applicant cannot change or modify her behaviours and thus change who she now is as a person. Secondly, given the country information outlined above at paragraph 38 as to ‘Atheists and Secular or Non-Practising Muslims’ and ‘Women’ that the applicant does face a real chance of persecution involving serious harm if she was to return to Iran in the reasonably foreseeable future because of her membership of the PSG of being ‘a divorced non-religious westernised women returning from a western nation without a male protector’
The Tribunal finds that the applicant’s fears in this regard are well-founded.
Membership of a particular social group (PSG) of ‘a person with knowledge of and/or holding information of the creation of fraudulent academic records for the issue of false PHD’s to Iranian officials’
The Tribunal having considered the provisions of s 5L of the Act as outlined above at paragraph 48, finds that the applicant is also a member of the PSG being ‘a person with knowledge of and/or holding information of the creation of fraudulent academic records for the issue of false PHD’s to Iranian officials.’
The Tribunal having accepted the applicant’s evidence as to this claim and her membership of this PSG, finds that given the continued contact by representatives of the eight senior Iranian officials through other persons enquiring as to, asking and demanding her to issue or cause the issue of their fraudulent PHD’s, together with the relevant country information as outlined above at paragraph 39 as to ‘corruption in the issuing degrees of education’ is satisfied that the applicant does face harm, in Iran. In that regard, the Tribunal finds that the applicant does face a real chance of persecution involving serious harm if she was to return to Iran in the reasonably foreseeable future. This finding is because these officials having paid for fraudulent PHD’s are most likely, given the applicant’s past involvement and employment with the [UNIVERSITY 1], are of the view that she can organise and procure these PHD’s for them. In the alternate given the recent Iranian investigations into fraudulently obtained tertiary qualifications being issued for payment as identified in the country information above and given that the Iranian officials having paid for such fraudulent qualifications. These officials are likely to hold a view that the applicant is aware of their payments and lack of relevant enrolment and studies and so she is at risk of serious harm as they would not want her to discuss her knowledge of their payments for these fraudulent PHD’s.
As such the Tribunal finds that the applicant does face a real chance of persecution involving serious harm on account of her membership of the PSG of being ‘a person with knowledge of and/or holding information of the creation of fraudulent academic records for the issue of false PHD’s to Iranian officials’ if she was to return to Iran in the reasonably foreseeable future.
The Tribunal finds that the applicant’s fears in this regard are well-founded.
Actual and/or imputed political opinion
The applicant also claims to fear serious harm if she was to return to Iran in the reasonably foreseeable future on account of her recent involvement in public demonstrations in support of women’s rights in Iran, and in response to the death of Jina Mahsa Amini in custody in Iran for a purported breach of the Islamic dress code.
In support of this claim the applicant provided a series of photographs purportedly showing the applicant participating in an anti-Iranian government demonstration at [a venue] in Australia. In response to the Tribunal at the hearing it was conceded by the applicant and her representative that she had not been involved in the organisation and/or coordination of this demonstration nor was she the subject of any media interviews or reporting on the demonstration and/or the reasons for the demonstration.
In this regard the Tribunal is not satisfied that the applicant’s involvement in, and expression of her anti-Iranian government stance as to the Iranian government’s policies as to women, which she has expressly publicly has given her an anti-government profile with the Iranian government. Noting her limited involvement, and that she has apparently only attended a small or even only one such demonstration, the Tribunal finds that she has not attained a negative profile with the Iranian government because of this conduct.
The Tribunal in this regard, finds that the applicant does not face a real chance of persecution involving serious harm if she was to return to Iran in the reasonably foreseeable future on account of her actual and/or implied political opinion on account of her participation in anti-Iranian government demonstrations in Australia.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Refugee criterion
The Tribunal, having considered all of the applicant’s claims both individually and cumulatively, does accept that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future if she was to return to Iran for reasons of her membership of the PSGs of being ‘a divorced non-religious westernised women returning from a western nation without a male protector’ and ‘a person with knowledge of and/or holding information of the creation of fraudulent academic records for the issue of false PHD’s to Iranian officials’ in all areas of her receiving country, Iran: s 5J(1)(c). The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the Iranian authorities to provide protection to her and as such there are not effective protection measures available to the applicant from the Iranian authorities: s 5J(2).
Therefore, the Tribunal finds that the applicants’ fears of persecution arising from her membership of the particular social groups of being a ‘a divorced non-religious westernised women returning from a western nation without a male protector’ and ‘a person with knowledge of and/or holding information of the creation of fraudulent academic records for the issue of false PHD’s to Iranian officials’ are well-founded as required by s 5J of the Act, and therefore, the applicant is refugee within the definition of s 5H of the Act.
Having found that the applicant is a refugee the Tribunal has also considered whether the applicant has a right to enter and reside in another country other than Australia. The Tribunal finds that the applicant does not have such a right to enter and reside in another country other than Australia: s 36(3) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies

s 36(2)(a) of the Migration Act.
David James

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

[2023] AATA 4017

9 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies