2100656 (Refugee)

2100656 (Refugee) [2024] AATA 3671 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Israa AL-TAEE
CASE NUMBER: 2100656

COUNTRY OF REFERENCE: Iran
MEMBER:Catherine Wall
DATE:19 September 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 19 September 2024 at 3:10pm
CATCHWORDS
REFUGEE – protection visa – Iran – political opinion – anti-government protests – rejection of Islam – extramarital relationship – murder of family member – detention – physical assault – anti-government social media activity – political activities in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347 at 348
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 11 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Iran. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] January 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 10 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Safe Haven Enterprise visa on 11 May 2016 (the first visa application). As at the time of this decision the department has not made a decision in relation to this first visa application.
The applicant applied for Safe Haven Enterprise visa again on 5 September 2020 (the second visa application). The Delegate refused the visa application on 11 January 2021. The applicant applied for review of that decision on 20 January 2021. The Tribunal finds that the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid visa application on 5 September 2020.
The applicant appeared before the Tribunal on 10 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Partner A] and the applicant’s friends, [Friend A] and [Friend B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review and the representative attended the hearing.
CLAIMS AND EVIDENCE
In the visa application the applicant made the following claims:
He was opposed to the lack of freedom and human rights in Iran and used to participate in anti-government protests.
[In] June 2009 he and his brother joined a post-election demonstration in Tehran. They were arrested and he was detained for [number] days, during which time he was beaten by a baton to his head and tight handcuffs scared his hand. He described this as psychological torture. He was released without his brother. After one month the authorities informed his family that they could collect his brother’s dead body. He said that his brother was murdered by the police.
After his brother’s death he was motivated to continue protests against the government. Prior to the elections in June 2013 he was involved in demonstrations organised by the opposition. He wanted to expose the inhumane aspects of the Islamic Republic to the world. During protests on [dates in] May 2013 two of his friends were arrested. He managed to escape and was so fearful of capture by the authorities that he decided to leave the country.
Since living in Australia he has participated in numerous protests and events to promote regime change in Iran. He believes that his activities in Australia are being monitored by the Iranian authorities and he would be blacklisted upon return to Iran.
Although he was raised as a Shia Muslim, he stopped practising when he was a young adult in Iran. He no longer has a religion. He is in a de facto relationship and his partner is pregnant with their first child. He will be considered a criminal in Iran for having a sexual relationship outside marriage.
Evidence to the Tribunal
The applicant told the Tribunal that he grew up in Tehran with his parents and two brothers, [named]. He and his family were Shi’a Muslims. His father owned a [specified] business in Tehran. As a young person he became increasingly concerned about the Iranian regime which denied people human rights. In 2009 he and his brother [Brother A] participated in a protest against the government. They were both arrested and detained. The applicant was interrogated and beaten over a period of [number] days. He was released however his younger brother was kept in prison. After one month his family was advised to collect his brother’s body. The applicant said that his brother was murdered by the authorities. His family was not allowed to hold any mourning event and they were told not to publicise the killing of his brother.
As a condition of his release the applicant was required to report regularly to the police station. Despite this requirement and his brother’s death, the applicant continued to participate in political protests, although he was not a member of any particular organisation and did not align with opposition parties. In 2012 he and two friends participated in a protest leading up to the 2013 elections. His friends were arrested however he managed to escape. He was very scared and decided to leave the country for safety. He took a flight to Indonesia and paid people smugglers for travel on a boat to Australia.
Since arriving in Australia the applicant entered into a de facto relationship with his partner, [Partner A]. They have [number] children aged [respective] years. He works as [an occupation 1] at [an agency] and his partner is an [occupation 2]. The applicant said that his physical health is good. He is aware of the importance of managing his mental health, given his past traumas and the extended period of uncertainty about his visa. He has not been diagnosed with any mental health condition and has not sought mental health treatment.
The applicant’s evidence is that he continued his political activism soon after arriving in Australia as he wants the world to know about the human rights abuses perpetrated by the Iranian regime. He is not a member of any specific organisation, rather he participates in activities with various organisations which advocate for human rights in Iran. He provided photographic evidence of his involvement in the following activities:
oHe acted as [an occupation 1] for [Mr A], an Iranian [activist], when he [appeared] in Australia in October 2023. [Mr A] is a political dissident and they discussed their concerns about the Iranian regime.
oHe attended a protest in Melbourne [in] September 2022 in response to the murder of Mahsa Amini.
oHe met with [Official A], [title], during his visit to Australia in 2020. He was photographed with [Official A] and [name deleted] ([details deleted]) and other members of the Iranian community.
oExamples were provided of his regular posts of photographs, articles and events on [social media] which are critical of the Iranian regime.
The applicant claimed that he will be imprisoned and potentially killed if he returns to Iran on the basis of his past political activism in Iran, his political activism in Australia, his rejection of Islam and his de-facto relationship.
In relation to his rejection of Islam, the applicant said that he stopped practising his faith in Iran when he was in his [age range]. His family was unhappy about this and pressured him to attend significant religion gatherings. He sometimes obliged out of respect for his family, particularly his grandmother. While he did not publicly express his rejection of Islam, as it was dangerous to do so in Iran, some people were aware of his beliefs and criticised him. He believes that he would be targeted upon return to Iran for being anti-Muslim given the time he has spent in Australia.
The applicant said that it is illegal to live with a woman in Iran without being married, therefore he is likely to be subject to charges and punishment if he returns to Iran.
I asked the applicant if his family was questioned by the authorities after he left Iran in 2013. He said that they were questioned in 2014 and he believes that his was related to his involvement in protests in Australia in 2014. He is unsure when they were last questioned as he believes that they do not tell him about certain things as they do not want him to worry. His parents and his youngest brother are not politically active and they have never been arrested or harmed by authorities.
I asked the applicant about his overseas travel prior to coming to Australia. He said that he travelled to [Country 1] in 2006 and sought protection because he was being threatened by his girlfriend’s family. Her family did not approve of him and they stopped him from having any contact with his girlfriend. She suddenly ‘disappeared’ and he was scared so he fled to [Country 1]. His protection visa application was refused in [Country 1] so he returned to Iran. He did not experience further difficulties with his girlfriend’s family and said that he never knew what happened to her.
He travelled to [Country 2] for work in 2012 and travelled to [Country 3] for a holiday in 2012. He said that he experienced routine questioning upon return from [Country 3] but did not feel that he was being targeted in any way. He was not questioned when he travelled to [Country 1] or [Country 2] or Indonesia. He confirmed that, despite his arrest in 2013, he was never convicted of any offence.
I advised the applicant that I had some questions about findings in the delegate’s decision, which he provided to the Tribunal for the purpose of review, and I would discuss these with him.
The delegate’s decision records that the applicant said, after leaving Iran, he had no knowledge of his friends, [Friend C] and [Friend D], who were arrested in 2013. The delegate found that his claim was inconsistent with evidence obtained by the Department of international money transfers between the applicant and [Friend C variant] after the applicant’s arrival in Australia. At interview the applicant denied knowledge of the transfers, however in a post-interview submission he admitted that they were in contact and his memory was affected by his psychological trauma. I asked the applicant if he wished to explain this inconsistency. He confirmed that he had sent money to his friend as he felt that he owed them, given that they were arrested and he escaped. He said that he did not mention this to the Department as he wanted to protect his friends.
The delegate also expressed concern that the applicant said at interview that his mother and brother were living in Iran, whereas independent evidence suggested that they were living in [Country 4]. The applicant said that his mother is Iranian but her family background is [Country 4] and she has a brother and cousins living in [Country 4]. She has travelled to [Country 4] regularly for many years, sometimes staying a few months. At the time of his interview with the Department he was not aware that she was visiting [Country 4].
The delegate stated that the applicant initially said he had never been summonsed in Iran, then later said at interview that his family received two summons after he left for Australia. When asked about this inconsistency, the applicant told the Tribunal that his family did receive summons after he had left the country, however he never received a summons while he was in Iran.
Evidence from [Partner A]
[Partner A] told the Tribunal that she is of [Country 4] ethnicity and was born in Australia and is an Australian citizen. Her family is Sunni Muslim however she does not practise any religion. She holds qualifications in [two occupations]. She met the applicant in 2016 and they now have [number] children. She confirmed that the applicant is committed to exposing the realities of the Iranian government and is active in various events organised by Iranian communities in Australia. She said that she sometimes accompanied him to events before they had children, but does not do so now because she does not want their children exposed to these issues.
She said that the applicant is very concerned about harm he will face if he returns to Iran. She told the Tribunal that, if he is returned, she would have to go with him because they are family. This would be difficult for her as she does not know the language, has no religion and there is a real possibility that he will be imprisoned.
Evidence from [Friend B]
Prior to the hearing, [Friend B] provided a letter of support which detailed her profile and political activities she shared with the applicant. She is a spokesperson for [Community Organisation 1] and a long-term advocate for human rights in Iran and for refugee rights. She is also involved with [Agency 1]. Her father is [name], a high profile human rights campaigner. Internet searches indicate that [Friend B] and her family are well-known activists who speak publicly against the Iranian government.
[Friend B] said that she has known the applicant since 2014 when she met him through her father. Since then they have regularly worked together organising various events, advocating for fellow Iranians, lobbying political and other leaders and generally creating awareness about human rights violations in Iran. She confirmed that the applicant has shared him story with many leaders, including [Official A], [title]. [Friend B] said that all such activities in Australia are closely monitored by the Iranian authorities. Her advocacy has placed her and those associated with her at great personal risk. She said that whenever she spoke publicly about the Iranian government, her family in Iran was targeted by the Iranian authorities. Her [Relative A] subsequently came to Australia for safety. She told the Tribunal that she believes that the applicant faces serious harm in Iran as a result of his activism in Australia and because of his association with her and her family.
Evidence from [Friend A]
[Friend A] told the Tribunal that he met the applicant 5 years ago through his [business] and they have become good friends. He cannot attest to the applicant’s circumstances in Iran, however he can confirm that the applicant is a good and honest man who works hard and cares about people.
In support of his claims, the applicant submitted the following information to the Tribunal:
oDetailed legal submission form the representative addressing the applicant’s claims with relevant country information.
oAs Letter of support from [Friend B] dated 4 September 2024.
oA supporting statement from [Partner A].
oA statutory declaration from the applicant dated 4 September 2024.
oCopies of screenshots from social media posts.
oPhotographs of the applicant at various political events in Australia
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant satisfies the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity

The applicant arrived in Australia without travel documents. He claimed to be a citizen of Iran. He subsequently submitted translated copies of his birth certificate and Iranian Identity Card, both identifying him as [the applicant’s name], born on [DOB 1]. The delegate did not indicate any concerns about the applicant’s identity or nationality, however there were concerns about inconsistencies in his date of birth as Department records state his date of birth as [DOB 2 in the same year]. The applicant claimed that this error happened during his entry interview. As a result the applicant’s date of birth in the delegate’s decision and his date of birth in the review applicant are different. Despite this discrepancy, I am satisfied that the applicant is a national of Iran and I have assessed his claims against Iran as his receiving country.
Does the applicant meet the refugee criteria?
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
[2] See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact 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.
I found the applicant’s evidence to be generally credible. His evidence about his activities in Australia were supported by documentary evidence and oral evidence from the witnesses. Having considered his explanation for some inconsistencies in evidence which were described in the delegate’s decision, I do not consider the inconsistencies to be significant and therefore give them no weight.
I note that the delegate was satisfied that the applicant was arrested in 2009 and that his [Brother A] was murdered. I also accept these claims. The delegate found that the applicant departed Iran on the fear of being apprehended by the authorities but not as a result of any direct interactions with the authorities.
I am mindful that the applicant was never convicted of an offence in Iran and he was permitted to leave and re-enter the country on three occasions without difficulty. This suggests that he did not have a significant profile with the authorities, although I accept that he was known to the authorities as having anti-government views given his involvement in several protests, his arrest and detention and the death of his brother.
I accept, on the basis of oral and photographic evidence and witness testimony, that the applicant has been actively engaged in various anti-Iranian regime activities since he arrived in Australia. I have considered whether he has engaged in this conduct for the purpose of strengthening his protection claims: s 5J(6). I am satisfied that the applicant’s political activism in Australia is a continued expression of his opposition to the Iranian regime and the denial of human rights in Iran. I find that his conduct reflects his beliefs and commitment to change in Iran, and has not been undertaken to strengthen his claim to be a refugee.
The evidence before me indicates that the applicant is identified publicly as an Iranian asylum seeker who demands regime change in Iran. He is publicly associated with leading activists such as [Friend B], [Official A] and [Mr A]. I find that his activism and his association with high profile activists gives him a profile that would attract attention from the authorities if he returns to Iran.
Country information
Country information reports that Iran is a theocratic republic, The constitution provides for freedom of expression, association, opinion, assembly and religion, if those rights do not violate certain principles, including Islam. In practice, these rights are not typically upheld by authorities.[3] Opposition political parties can exist in theory. In practice, they must be licenced and only parties which hold views consistent with the government’s theocratic ideology will be granted a licence.[4]
[3] DFAT Country Information Report Iran, 24 June 2024 at 2.36
[4] Ibid at 2.104
On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime. Protests can be met with lethal force.[5]
[5] Ibid at 2.105-2.106
DFAT reports that the government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.[6]
[6] DFAT Country Information Report Iran, 24 June 2024 at 2.107-2.108
The US Human Rights Report 2023 found that “The Islamic Republic of Iran’s already severe restrictions on human rights worsened in a number of areas during the year. There were numerous reports that the government or its agents committed arbitrary or unlawful killings, including extrajudicial killings, during the year. These included executions for crimes not meeting the international legal standard of “most serious crimes” or for crimes committed by juvenile offenders, as well as executions after trials without due process.[7]
[7] US Department of State Human Rights Report: Iran 2023 at section 1:
According to DFAT, the Iranian authorities monitor online content, including social media. Individuals repeatedly posting content that is openly critical of the government, its institutions and policies or deemed to be pushing moral boundaries may attract adverse attention, especially if the content goes viral. This includes individuals based abroad. In 2019, sources told DFAT that Iranians with links to Iran-based foreigners are more likely to have their social media accounts monitored. To avoid detection, persons critical of the Islamic Republic on permitted social media platforms may use aliases to conceal their identity.[8]
[8] DFAT Country Information Report Iran, 24 June 2024 at 2.127
According to US Department of State 2023 report, the Iranian government continued to engage in acts of transnational repression to intimidate or exact reprisal against individuals outside of the country’s sovereign borders, including against members of diaspora populations such as political opponents, civil society activists, human rights defenders, and journalists For instance, in February 2023 the Norwegian police warned that the Iranian regime had been engaging in digital surveillance of dissidents in Norway. [9] The UK Home Office Report notes that, whilst a number of sources reported on the Iranian state’s ability to access and monitor user data by using malware and spear phishing, including in the diaspora, the level to which Iranian authorities can monitor the content of foreign social media platforms is unclear. Requests have been made to external providers by the Iranian authorities for mobile device data and/or Facebook user data, though the extent of how much data, if any, was provided is not known.[10]
[9] US Department of State Human Rights Report: Iran 2023 at section 1:F
[10] UK Home Office Country Policy and Information Notes: Iran. March 2022 at 2.4.15
An article in the Sydney Morning Herald on 16 January 2023 reports [a Melbourne lawyer] and anti-regime activist, that she knows of six Australian-Iranians whose relatives had been arrested or interrogated since the recent protest movement began.[11] The article states that Iranian Australians say they feel unsafe inside Australia’s borders. Several activists said local protests had sometimes turned violent after people suspected of being linked to the regime arrived and filmed them. One protest leader was beaten by unknown men and was admitted to hospital. Dr Kylie Moore-Gilbert is reported as stating that ‘“There’s a lot of fear in the Australian community because of the involvement of agents and informers here in Australia, recording protests, sending threatening messages and letting people know they are being watched.”
Assessment
[11] Iran cracks down on family of Australian protesters (smh.com.au)
On the evidence before me I make the following findings:
oI accept that the applicant was politically active in Iran and participated in various protests against the government.
oI accept that he was arrested and detained and beaten in 2009 in Tehran because of his involvement in a protest. I accept that he was required to report to the authorities regularly after his arrest although he was not convicted of any offence.
oI accept that his brother was murdered by Iranian authorities in 2009 as a result of his participation in anti-government protests.
oI accept that he continued to engage in protests between 2009 and 2013 when his friends were arrested and he managed to escape.
oI accept that he left Iran in 2013 because he feared being arrested and imprisoned because of his political activism
oI accept that he has continued his activism against the Iranian regime while living in Australia. While not a member of any specific organisation, he participates in a range of activities including protest, advocacy and awareness raising. He also has an active social media presence.
oI accept that the applicant is publicly identified as being opposed to the Iranian government and has been publicly associated with high-profile Iranian dissidents in Australia.
Having considered the applicant’s claims individually and cumulatively, I find that, if returned to Iran, he will have a significant profile as a political dissident on the basis of: his history of protest and arrest and detention in Iran; his political activism in Australia; his association with high profile anti-Iranian activists; and his status as a failed asylum-seeker. I find, on the basis of country information, that political activists in Iran are at risk of arbitrary arrest, detention and possible death.
On the evidence before me I find that, if the applicant returns to Iran now or in the foreseeable future, there is a real chance he will face serious harm from the authorities as required by s 5J(4)(b) of the Act, in that it involves a threat to his life or liberty or significant physical harassment or ill-treatment, for the purposes of ss 5J(5)(a) and 5J(5)(b). I find that the applicant’s political opinion (anti-Iranian regime/pro-human rights) is the reason he fears persecution and there is a real chance he would be persecuted for reason of his political opinion: s 5J(1)(a) and (b).
I find that the applicant’s political opinion is the essential and significant reason for the persecution he fears, as required by s 5J(4)(a) and I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it is deliberate or intentional and involves his selective harassment for reason of his political opinion.
In this case, as the applicant fears serious harm at the hands of state actors, I am not satisfied that the effective protection measures per s 5LA are available to the applicant in Iran provided by the state, party or organization. It follows that I do not accept that the applicant would be able to access effective protection if returned to Iran for the purposes of s 5LA(2).
As the state authorities whom the applicant fears exist nationally, I am not satisfied that there is any part of Iran where he would be safe from the persecution that he fears based on his actual or imputed political opinion. I am satisfied the applicant would face a real chance of persecution in all areas of Iran as required by s 5J(1)(c).
Section 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case, I am satisfied that the modification would require the applicant to alter his political beliefs which is impermissible as per s 5J(3)(c)(iii) of the Act.
Accordingly, and for the reasons above, I find that the applicant faces a well‑founded fear of persecution from the authorities due to his political opinion if he returns to Iran, now or in the reasonably foreseeable future. I find that the applicant has a well-founded fear of persecution for the purposes of s 5J.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.
For these reasons I accept that the applicant has a well-founded fear of persecution if he returns to Iran for the reason of his political opinion. It follows that he satisfies the criterion set out in s 36(2)(a).
CONCLUSIONS
For the reasons given about is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Catherine Wall
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 3671

19 September 2024

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Immigration

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Statutory Interpretation

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