2100117 (Refugee)

2100117 (Refugee) [2024] AATA 2128 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Navid K. Baghi
CASE NUMBER: 2100117

COUNTRY OF REFERENCE: Iran
MEMBER:Alison Murphy
DATE:23 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 23 February 2024 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Iran – particular social group – bisexuality – same sex relationships in Iran and Australia – political opinion – participated in Green Movement protests – social media posts – religion – interest in Christianity – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 46A, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCFCA 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 9 December 2020 to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Iran, arrived in Australia in May 2013 by boat. The applicant applied for the visa on 11 August 2020 and the delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 20 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. An interpreter in the Persian and English languages was available to assist, but for the most part the applicant preferred to proceed in English, in part because of the sensitivity of his evidence.
The applicant was represented in relation to the review.
VISA APPLICATION HISTORY
It became apparent prior to the hearing that the visa application the subject of the review was the second SHEV application made by the applicant, the first having initially been assessed as invalid but later reassessed as valid. The Tribunal understands the circumstances to be as follows.
The applicant arrived in Australia [in] May 2013 by boat and without a valid visa. He was granted a UJ-449 (Humanitarian Stay) visa for one week in July 2013 and assessed as being an unauthorised maritime arrival subject to the operation of s46A.
It would appear that the Minister subsequently lifted the s 46A bar and the applicant lodged the application for the first SHEV on 12 May 2017. It is apparent from correspondence from the Department to the applicant dated 23 February 2023 that the first SHEV application was initially assessed to be invalid due to the operation of s 91K. This was at the time thought to be the effect of the grant of a UJ-449 (Humanitarian Stay) visa to the applicant in July 2013.
On 23 February 2023, the Department wrote to the applicant advising that the first visa application was affected by the Full Federal Court judgment handed down in Minister for Immigration,Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCFCA 63. It noted that in that case, the Full Federal Court found that the Minister’s decision to grant a UJ-449 visa to a person who entered Australia by sea, directly to the mainland before 1 June 2013 without a valid visa, was invalid. This was because the decision to grant the visa was based on the mistaken belief that the applicant was an unauthorised maritime arrival (UMA) within the meaning of section 5AA of the Migration Act and therefore subject to the operation of section 46A. That letter advised him that the Department had reassessed the SHEV application made on 12 May 2017 as valid.
As at the time of the Tribunal hearing and decision, the first SHEV application was awaiting assessment by the Department.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In this case the relevant report is the DFAT Country Information Report: Iran dated 24 July 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Country of nationality
There is no dispute that the applicant is an Iranian citizen, with the delegate recording that the applicant had provided the Department with a certified copy of his Iranian identity card and uncertified copies of his Iranian birth certificate, driver’s licence, military exemption card and education documents. The Tribunal finds the applicant is an Iranian citizen and has assessed his claims against Iran as his country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old male from Tehran, Iran. He grew up in a household comprising his parents and sister. After completing high school in Tehran, he worked as a [Occupation 1] and a [Occupation 2] in that city. He also participated in [sport] at a high level and was selected to represent Iran in an international competition [overseas].
Since his arrival in Australia he has completed [deleted] and received [support] to study [subject]. As at the time of the Tribunal hearing, he had one year remaining of a Bachelor [degree]. He was working in a [shop], having previously worked in this country as a [Occupation 1], at a [workplace] and as a [Occupation 2].
Medical evidence indicates that the applicant experienced PTSD following a near drowning of a young child in the pool at which he was working in 2018. The applicant rescued the child who was fortunate to survive, but the applicant’s mental health condition ultimately precluded his return to that work. The applicant was diagnosed with extremely severe anxiety and moderate depression in August 2019 and treated with medication and cognitive behavioural therapy. At hearing the applicant gave evidence that he was no longer taking medication or receiving counselling, but that he continued to experience symptoms of PTSD.
I accept the above matters to be true.
The applicant’s claims for protection
By the time this matter came before the Tribunal, the applicant had been living in Australia for more than 10 years, essentially the first ten years of his early adulthood. As might be expected, his claims for protection evolved during that period as a result of events in both Australia and Iran.
His claims originally centred around his political activities in Iran in 2009 and his disagreement with the religious authorities in that country. At the time he was interviewed by the delegate in November 2020, he had been exploring Christianity for some time and expressed an intention to convert. At the Tribunal hearing, he gave evidence that upon further reflection he had decided not to convert to Christianity and now considered himself to have no religious beliefs whatsoever.
By the time of the Tribunal hearing in February 2024, the applicant’s fear of harm on return was centred on his political and religious opinions as a person who is opposed to the regime in Iran and his sur plus claims to be of non-conforming sexual orientation. For the following reasons the Tribunal has determined that the matter should be remitted to the Department.
The applicant’s sexuality
In a statutory declaration made 18 January 2024, the applicant claimed for the first time to fear harm in Iran because as a bisexual man. He set out in some detail his early sexual experiences with boys and men in Iran, which were conducted in secret and always in fear of discovery. At the same time he also had relationships with girls.
The applicant claims that on arrival in Australia, he had a same-sex relationship with another Iranian asylum seeker whom he met in detention and went on to live with in shared accommodation in other locations. Since then he has had a number of relationships with women and men in Australia, but his same-sex relationships have always been in the nature of casual hook-ups for fear of anyone within the Iranian diaspora community finding out about his sexuality.
At hearing the applicant gave frank and apparently spontaneous evidence about his sexual history in a manner the Tribunal considered credible, notwithstanding his obvious embarrassment and anxiety.
In support of his claims, he provided the Tribunal prior to hearing with screenshots of chats on apps including [App 1] and [App 2], containing images and language of a sexual nature and documenting dates and locations of meetings between the applicant and his sexual partners. At hearing the applicant showed me those chats and others in the apps on his phone and I am satisfied that they are genuine, that they have been occurring over a period of time on a number of apps and involve a number of different men. The content of those chats is explicitly sexual and references in-person meetings as well as sexual images.
The applicant’s most enduring relationship is with a man whom he claims to have known since about 2018, who is identified in the materials submitted to the Tribunal but who will be referred to in these reasons as Mr A. The applicant gave evidence that after connecting with Mr A online in or about 2018, they met for sex and have since stayed in regular communication as evidenced by their [App 1] chats.
Mr A provided a letter of support for the applicant dated 29 December 2023. In that letter Mr A identifies himself by name and occupation and gives a street address but no other contact details. He confirms that he first met the applicant in about 2018, that their relationship was sexual but not serious and that it was not widely known as they do not engage in social activities together. He states that they continue to communicate online and in his personal experience the applicant has a sexual interest in men although he understands the applicant to be interested in both genders.
While the applicant initially advised the Tribunal that Mr A would be prepared to give evidence to the Tribunal, when arrangements were being made for this to occur prior to the hearing Mr A reportedly told the applicant that the ‘court-like environment’ was ‘overwhelming’ and that he would not attend the hearing. At hearing the applicant told the Tribunal that he still believed Mr A would speak to the Tribunal by phone, at which time the Tribunal invited the applicant to contact Mr A to see if that could be arranged. During the hearing the applicant received several messages from Mr A, initially stating that he was at work and by implication would not speak to the Tribunal but later stating that he would talk to the Tribunal if it called during his break. However that break was scheduled for a time after the Tribunal had finished the hearing.
The Tribunal considered resuming the hearing at a time Mr A was available to give oral evidence to the Tribunal but ultimately decided it was unnecessary to do so. This is because the Tribunal was able to verify the personal information that Mr A had provided in his written statement from open sources online. In particular the Tribunal was able to confirm Mr A’s employment as stated. As well Mr A’s photograph as it appears on the screenshots of the [App 1] chats also appears on his LinkedIn profile. Taken together with the applicant’s own evidence, Mr A’s letter of support and the screenshots of the [App 1] chats, the Tribunal is satisfied as to Mr A’s identity and that he and the applicant are casual sexual partners who commenced their relationship in or about 2018.
The Tribunal has also viewed online chats with other sexual partners with whom the applicant has met up with mostly once, but occasionally more often. Again the contents of those chats are unambiguously sexual in nature and in some cases identify the person’s name and address. The Tribunal is satisfied that the applicant has and continues to have casual sexual encounters with men whom he meets primarily online.
As to why such claims were not raised earlier in the visa application process, the applicant says that discussing such matters was impossible for him because of cultural attitudes to same-sex relationships in Iran and a sense of shame and the fear of potential consequences. He gave evidence that he can never let his family know, both because they would literally kill him and also because he doesn’t want to break his mother’s heart. He asked the Tribunal to dismiss the interpreter before discussing this part of his claims and implored the Tribunal not to disclose these matters to the witness. He gave evidence that absolutely nobody in Australia or Iran knew about his sexuality other than the men with whom he had had sexual encounters and that he was terrified of the ramifications if his friends or family were to find out. The Tribunal accepts that the applicant remains conflicted and fearful about his sexuality and for this reason he has not disclosed his same-sex encounters to his friends, family or former lawyer. The Tribunal is satisfied the applicant’s same-sex encounters commenced well prior to the visa application process and do not represent an attempt to bolster his protection claims.
The applicant told the Tribunal that he had had sexual relationships with women both in Iran and in Australia although he didn’t have a girlfriend at present. On the evidence before it, the Tribunal accepts the applicant is bisexual as claimed.
The applicant’s political and religious claims
The applicant claims to fear harm because of his political and religious beliefs, as a person opposed to the Iranian regime which operates as a theocracy and which he views as corrupt. He stated in his entry interview in 2013 that he left Iran to get away from a ‘thieving government’ and a country where ‘you need to be a crook to be successful’. While it is apparent from that interview that his stated reasons for leaving Iran were at least in part economic, the Tribunal is satisfied that his political and religious views, now more refined after more than a decade in Australia, continue to be vehemently opposed to the current Iranian regime. In making that assessment the Tribunal has had regard to the applicant’s various written statements and oral evidence, as well as a multitude of political [social media] posts which the Tribunal was shown at hearing including a video taken by the applicant at a protest against the Iranian regime in September 2022 in Melbourne.
The Tribunal accepts his evidence that he was involved in the Green Protests in 2009, noting that he disclosed this as early as his entry interview in 2013 and his claimed participation is consistent with country information indicating that millions of Iranians participated in mass protest events in the streets of Tehran and other cities following the election of President Mahmoud Ahmadinejad in a vote widely considered to be rigged. Thousands of protesters were detained and/ or beaten and harassed by security forces.[1] DFAT indicates that the Green Movement has little or no profile in Iran today, although protests are relatively common in Iran and can be violent. In September 2022, a significant protest movement began following the death of Mahsa Amini, initially led by women and girls and evolving into broader protests against the Iranian regime.[2]
[1] DFAT DFAT Country Information Report: Iran 29 November 2013; A decade after Iran’s Green Movement, some lessons - Atlantic Council;
[2] DFAT DFAT Country Information Report: Iran 24 July 2023
Having viewed the applicant’s social media accounts, the Tribunal accepts that the applicant has posted and continues to post about his opposition to the Iranian regime on social media and that the views he expresses are genuinely held. In that regard the Tribunal notes the evidence of [Ms A], who has known the applicant for a number of years and states that he is very authentic in his political concerns and has been active in expressing those views as an influential leader among his peers. She reported that she had observed him to become very stressed during the recent protests in Iran concerning Mahsa Amini, triggering both a desire to continue his own protest activities as well as a decline in his mental health linking back to his own experiences in Iran. She gave evidence that like many Iranians [in] Australia, the applicant had witnessed public executions as a young child which had a great impact on him and he holds a genuine fear that the Iranian authorities are monitoring the Iranian diaspora in Australia, including in educational settings. The Tribunal notes in that regard reports that ASIO shut down a surveillance operation by the Iranian government against a dual Iranian-Australian citizen connected to protests in Australia over the death of Mahsa Amini.[3]
[3] Australia warns of foreign surveillance operations, names Iran | Politics News | Al Jazeera

As set out above, it is not in dispute that the applicant was born into a Muslim family; has explored Christianity since his arrival in Australia and now describes himself as holding no religious beliefs whatsoever. The applicant’s evidence is consistent with DFAT’s advice that many young Iranians are secular, particularly in the major cities such as Iran. The Tribunal accepts that in a theocracy such as Iran, where all bills passed by parliament are reviewed for compliance with sharia law and all candidates for election assessed on the basis of their allegiance to Shia Islam and the Islamic Republic, religious beliefs are also an expression of political opinion.[4] For the above reasons, the Tribunal accepts the applicant holds political and religious beliefs that are opposed to the Iranian regime and its system of governance.
[4] DFAT DFAT Country Information Report: Iran 24 July 2023
Future Risk of Harm
In assessing the applicant’s claims to fear harm on return to Iran, the Tribunal must consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward‑looking test.
For the reasons set out above, the Tribunal has accepted that the applicant has had and continues to have sexual encounters with men as well as women and identifies himself as bisexual. He fears that if returned to Iran, he would be exposed to harm from the Iranian authorities, his family and society more broadly.
DFAT reports that sexual intercourse between males is illegal and can attract the death penalty, even where such activity is consensual. DFAT states that it is aware of executions as recently as February 2022 and notes that gay men also face homophobic violence from family members and others. In September 2022 two Iranian LGBTIQ+ activists were sentenced to death for offences including ‘corruption on earth through the promotion of homosexuality’ and assisting people at risk to leave Iranian territory. While young Iranians, particularly those in more progressive parts of major cities, are reported to be increasingly more tolerant, homosexuality is not openly discussed and gay people face severe discrimination including harassment and violence from family, religious figures and community leaders. DFAT assesses that LGBTIQ+ people face a high risk of official discrimination and violence that may amount to risk of death as well as a high risk of societal discrimination.[5]
[5] DFAT DFAT Country Information Report: Iran 24 July 2023 at 2.147 – 2.153
Similarly the UK Home Office reports that in general, a person living openly as LGBTIQ+ in Iran who has not gone through gender-reassignment surgery is likely to be at risk of treatment from state actors which is sufficiently serious to amount to persecution or serious harm. It notes that Iran’s public officials have consistently denounced same-sex relationships, describing them as deviant, subhuman and diseased and notes that LGBTIQ+ individuals face arrest, detention, threats and humiliation and physical or sexual abuse by the security forces and members of the judiciary on the basis of their sexual oritentation.[6]
[6] UK Home Office Country Information Note Iran: Sexual orientation and gender identity and expression June 2022
The Centre for Human Rights in Iran reports that LGBTIQ+ people in Iran face severe legal and social discrimination with same-sex relations being punishable to flogging and death. Legalised persecution incites widespread state and societal violence against the LGBTIQ+ community who are at risk of prosecution if they seek legal remedy for such violence through the police or the courts. The community is forced to stay underground to avoid imprisonment, lashes or execution and the Iranian government remains unrepentant of its treatment of the LGBTIQ+ community, with numerous political and religious leaders describing homosexuality in terms such as ‘perversion’, ‘savagery’ and ‘a form of sickness’. It notes that LGBTIQ+ people are forced to undergo conversion therapy and/ or sex reassignment surgery typically performed by ill-trained surgeons.[7]
[7] Centre for Human Rights in Iran Fact Sheet: LGBTQ Rights in Iran August 2021
Amnesty International reports on the murder of a gay man in Iran in 2021:
According to individuals interviewed by Amnesty International who had known Alireza Fazeli Monfared for months or years prior to his murder, including his partner and a close friend, he had faced years of homophobic and transphobic harassment and death threats by several male relatives because he did not conform to the binary socio-cultural gender stereotypes and “norms” in Iran. According to these informed sources, he had never reported such incidents to the police out of a fear of facing violence and prosecution at the hands of the authorities.
It is well established that persons of non-conforming gender identity and/or sexual orientation in a given country can constitute a particular social group.[8] Having accepted that the applicant is bisexual, the Tribunal accepts that on return to Iran he will be a member of the particular social group comprising the LGBTIQ+ community in that country.
[8] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
In these circumstances, the Tribunal accepts the applicant faces a real chance of serious harm in Iran for the essential and significant reason of his membership of the particular social group comprising the LGBTIQ+ community in that country. That harm includes exposure to criminal prosecution for crimes that attract the death penalty and other forms of corporal punishment; as well as coercive or forcible ‘medical’ treatment including sex reassignment surgery and conversion therapy and other acts of discrimination and violence capable of constituting serious harm. The perpetrators of that harm include the Iranian authorities; religious and political leaders and members of the community including the applicant’s family.
The Tribunal finds that any modification of the applicant’s behaviour to avoid a real chance of persecution in Iran on the basis of his sexual orientation would be undertaken only to avoid the threat of serious harm and would conflict with characteristics that are fundamental to his identity or conscience. The Tribunal is satisfied that the applicant has conducted his same-sex relationships in Australia and Iran in secret for fear of the consequences of discovery. He is not required and cannot be expected to take steps to modify his behaviour so as to conceal his sexuality in order to avoid the feared persecution.
As one of the perpetrators of harm in this case is the Iranian state, the Tribunal accepts that the real chance of persecution relates to all areas of Iran and effective state protection is not available to him.
For these reasons, the Tribunal accepts the applicant has a well-founded fear of persecution in Iran for reasons of his membership of the particular social group comprising the LGBTIQ+ community for the purposes of s 5J. As he is outside of his country of nationality and unable to avail himself of the protection of that country owing to his well-founded fear of persecution he comes within the definition of a refugee set out in s 5H. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
In light of the Tribunal’s findings above, it is unnecessary to go on to consider any further risk of harm to the applicant for reasons of his political and religious beliefs.
THIRD COUNTRY PROTECTION
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if they have not availed themself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.
Nothing in the material before the Tribunal indicates that the applicant has a right to enter and reside in any third country apart from Australia. It follows that s 36(3) does not apply in the circumstances of this case.
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 the Refugees Convention. Therefore, the applicant satisfies the criterion set out in 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.
Alison Murphy
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 2128

23 February 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

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Natural Justice