2102025 (Refugee)

2102025 (Refugee) [2024] AATA 2600 (28 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mikele George Prestia
CASE NUMBER:  2102025
COUNTRY OF REFERENCE:                   Iran
MEMBER:Bridget Cullen
DATE:28 March 2024
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 28 March 2024 at 12.29pm
CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – conversion from Islam to Christianity – renounced Islam – political opinion – opposition to the current political regime in Iran – membership of the particular social group – a returnee from a Westernised country – applicant had been the subject of adverse official attention prior to departing Iran – State protection is not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 19 February 2021 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 8 September 2020. The Delegate refused to grant the visa on the basis that he was not satisfied that the Applicant was a refugee as defined by s5H(1) of the Act and not a person in respect of whom Australia had protection obligations as outlined in s36(2)(a) of the Act. He was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there was a real risk the Applicant will suffer significant harm as outlined in s36(2)(aa) of the Act and was therefore not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.
The Applicant appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. The Tribunal also heard evidence from [Mr A], [Church 1], [City 1] Corps. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The Applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An Applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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 has a well-founded fear of persecution on return to Iran or there is a real risk of significant harm if the Applicant is removed from Australia to Iran. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Nationality
The Applicant was born in Iran. He has presented a copy of his Iranian Birth Certificate, Iranian National Identity Card, and Iranian Military Service Exemption Card, to the Department.
Having conducted a forensic analysis of the documents, the Department accepted that the Applicant was who he claims to be, and a national of Iran. There is no basis for the Tribunal to find differently, and therefore the Tribunal also finds that the Applicant is who he claims to be and is a national of Iran.
Procedural history
The Applicant first arrived in Australia on [date] May 2013, by boat, as a Direct Entry Person. On 23 January 2017, he applied for a Safe Haven Enterprise Visa (‘SHEV’) due to his fear of harm in Iran arising from his alleged political activities, adverse profile with Iranian authorities, and outstanding legal charges. On 6 August 2018 the Federal Circuit Court handed down judgment in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (‘DBB16’). Having arrived in Australia via Ashmore Reef, the Applicant was affected by this decision, and his application was subsequently deemed invalid. The Department subsequently informed the Applicant that the s91K bar had been lifted and he was eligible to apply for a protection visa.
On 8 September 2020, the Applicant lodged an application for a Safe Haven Enterprise Visa, due to continuing to fear harm in Iran as a result of his alleged political activities and conversion from Islam to Christianity. On 19 February 2021, a Delegate of the Department refused the Applicant’s SHEV application. On 21 February 2021, the Applicant applied to review the 19 February 2021 decision, now before this Tribunal.
Claims
The Applicant claims to fear that, if required to return to Iran, he will face serious harm for the following reasons (both individually and cumulatively):
·Religion – he has converted to Christianity; and renounced Islam;
·Political opinion (actual or implied) – based on his opposition to the current political regime in Iran, his participation in the illegal distribution of foreign media and Green Movement protests; and
·The length of time the Applicant has resided in Australia (since 2013) will present issues as a returnee from a Westernised country, as a failed asylum seeker.
The Applicant’s claims have been comprehensively outlined in his representative’s submissions as follows:
The Applicant was born and raised as a Muslim in Iran. As he entered adulthood, he began to question Islam and the way it was imposed on Iranians by the regime. He particularly disliked the censorship of foreign media and limitations on political and religious expression in Iran. The Applicant’s beliefs led him to take interest in reformist politician Mir-Hossein Mousavi, who contested the 2009 presidential election. This election was ultimately won by Mahmoud Ahmadinejad, in what many regarded as a fraudulent election. After the election, the Applicant joined the Green Movement, a mass political protest seeking an annulment of the outcome. The Applicant participated in protests against the regime and collected footage of protestors on his personal electronic devices.
In 2010, the Applicant started an illegal business supplying [products]. In 2013, this business was subsequently raided by the Basij, Ettela’at and Seppah, who confiscated his work equipment, as well as his personal laptop. The laptop contained multimedia, created by the Applicant, which expressed support for the Green Movement. After his business was raided by authorities, the Applicant fled to Australia, arriving on [date] May 2013.
Since arriving in Australia, The Applicant has enjoyed the freedom to explore his own understanding of spirituality and religiosity. In 2014, The Applicant attended the [a church] in [City 2] (‘[City 2] Church’). There, he befriended other Mormon Christian parishioners who began to inform him about their faith. New to Australia, The Applicant was not seeking to convert to a new religion at the time and simply enjoyed the friendship and community provided by the church.
The Applicant felt a growing curiosity for the principles of Mormonism and felt comfortable knowing that he would not be forced to practice the religion if he did not wish to. From 2014 to 2017, the Applicant continued attending the [City 2] Church. In this time, he deepened his understanding of the faith. He still felt himself to be new to the Christian faith and chose not to convert as he did not feel ready. In around 2017, the Applicant moved to [a town] for work. This made attendance at the [City 2] Church more difficult and he began attending on a monthly basis. In 2020 he returned to [City 2] as theCOVID-19 pandemic was beginning. For the duration of this year, the Applicant attended services online fortnightly due to public health restrictions.
In 2021, when the Applicant’s father became critically unwell, he felt compelled to deepen his relationship with his Christian faith. He received pastoral care from members of [another] Church, to which he was introduced by his friend [name]. This support in a time of personal crisis affirmed his belief in Christianity. The Applicant converted to Christianity on 8 December 2021. It is submitted that the Applicant’s non-identification as a Christian at the time of his initial interview and protection application was an honest representation of his perspective at the time. The Applicant grew up in a society which did not allow for freedom of choice regarding religious expression. Resultantly, he did not take this newfound freedom for granted when he was able to experience it in Australia.
In addition to the material provided by the Applicant to the Department, he provided the following information to the Tribunal:
·Statutory Declaration of the Applicant, dated 19 February 2024;
·Baptism Certificate of the Applicant, dated 8 December 2020;
·Bible Studies Completion Certificate dated 10 December 2020;
·Letter of support from [Mr A], The [Church 1], [City 1] Corps, dated 30 October 2023;
·Letter of support from [Mr B] of the [Church 1], dated 18 February 2024;
·Letter of support from [Mr C], [position], [Church 2], dated 22 January 2024;
·Photos of the Applicant’s Attendance at Anti-regime Protests in Brisbane in 2023 & 2024;
·NAATI Translated Iranian Subpoena, dated 17 March 2017.
At the time of making his 30 October 2023 statement, [Mr A] indicated that he had known the Applicant for approximately 8-months, and said that the Applicant regularly attended the [City 1] Temple, and was a member of the [City 1] Christian social group. [Mr A] gave evidence at the Tribunal hearing consistent with his 30 October 2023, attesting that the Applicant had a genuine Christian faith, and believed in biblical values.
[Mr C] says that he has known the Applicant since 2020, and indicates that the Applicant has attended a basic Christianity course, and then engaged in a “public confession of faith” in front of [Church 2], which is the way in which baptism takes place in the [congregation]. The letter of support from [Mr B] indicates that he met, with his wife, the Applicant sometime in 2022 at the [City 1] Temple, and confirms that he has been a member of the congregation.
Consideration of evidence and claims
The Applicant provided a statement dated 19 February 2024, outlining his claims, including those relating to his underground [business]. The Delegate accepted that the Applicant operated an underground [business] as claimed. The Applicant’s evidence in relation to the underground business and the raid has been consistent for more than a decade.
However, the Delegate did not accept that the Applicant had a profile with authorities in Iran, as a consequence of his business having been raised, or as the result of social media posts or participation in protests. In part, the Delegate formed this view as they considered the Country Information for Iran suggested that it was relatively easy to obtain a summons, and to then forge new details. Yet, the Delegate did not conclude that the document was a forgery as there was insufficient evidence to make that conclusion.
The Applicant has responded to these concerns about the authenticity of the summons as follows:
AUTHENTICITY OF DOCUMENT REGARDING COURT ATTENDANCE
I wish to clarify the content of the document I referred as a “summons” in my SHEV application dated 8 September 2020. This document, provided in support of my protection application and served on [name], was the subject of considerable scrutiny from the delegate.
The delegate acknowledged that the summons was handwritten, contained a file number and stamp, and specified a reason for issue – all of which were consistent with independent examples cited. The delegate noted that slight variations from independent examples were of no concern, as “…inconsistency of formatting is not uncommon.”
In Iran, although the Court issues documents to parties, the person who delivers it is the one who handwrites the summons and provides the recipient with it. This is an official role, akin to a process server.
The delegate found that the date of appearance for the document pre-dated the date of service by one day. I wish to clarify the reason for the perceived discrepancy in dates.
On receiving it from my brother, I believed this document to be a summons and referred to it as such. I believed this because it contained my name, a specific charge and a court date.
The court appearance date on the document deemed to be a ‘summons’ was 13/11/91. This document listed the date of service as 14/11/91, one day after the hearing date. I wish to clarify that the document in question is not in fact an initial summons but a subpoena giving notice that I had missed my court date, which was mistakenly deemed to be the initial summons.
In the second line of the first paragraph, the document reads ‘Given name of the warned…’. This shows that this document represents further correspondence, following the court appearance date. [name] never received the original summons, only this subpoena. This is why the date of service post-dates the court appearance date; it was a ‘warning,’ akin to a Failure to Appear Notice.
To the best of my knowledge, [name], never received other correspondence from the court regarding my prosecution. It is not easy for my family to send me legal documents. Access to scanning technology was limited and sending this document placed my family at considerable risk of detection from the authorities.
The Delegate’s concerns in relation to the prevalence of fraud with documentation in Iran are acknowledged. The most recent DFAT Country Information Report for Iran, dated 24 July 2023, says the following:
PREVALENCE OF FRAUD
2.217 Iranian identity documents include sophisticated security features and are difficult to manufacture for fraudulent use. Those that are available are expensive and out of reach for most Iranians. Stiff penalties for use of fraudulent documents act a major deterrent. Fraudulent documents are generally easy for authorities to detect and security procedures at international airports are robust, but border crossing with fraudulent documents is easier at land border crossings. While it may be possible to obtain a genuine identification document with the intention of impersonating another person, DFAT assesses sophisticated border control procedures would make it difficult to use such a document in order to leave Iran.
2.218 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 Delegate observed that the translation of the document provided was “not in the same format as the original summons, making it difficult to attribute specific parts of the summons with the relevant translations”. This supports the Applicant’s assertions before the Tribunal that the correct interpretation of the document is that it was in fact a Failure to Appear Notice for a court event that had already transpired.
The Delegate did not find that the summons/warrant was a bogus document and did not draw any adverse inferences; however did not accept that the Applicant was a person of interest to the authorities.
The Applicant’s representative submits the following in relation to the document in question, in the written submissions filed in the Tribunal on 19 February 2024:
On further investigation of the document and instructions from the applicant it is clear that the document is a subsequent subpoena following non-attendance at court, rather than an initial summons. This is clear from the second line of the first paragraph of the document, in which [applicant] is referred to as “…the warned”. This wording is congruent with the document being issued after the court hearing, as the warning in question can only relate to non-attendance.
The Tribunal finds that the Applicant has been a credible witness. The Tribunal also finds that the Applicant has provided a plausible explanation for the date discrepancies on the summons/warning document that he supplied to the Department in support of his claims. In circumstances where the Applicant has provided a credible and consistent story, and where there is no information before the Tribunal besides speculation that the summons/warning is actually false, the Tribunal considers that the Applicant is entitled to the benefit of the doubt.

The Tribunal finds that the Applicant operated an underground [business] in Iran, which was raided by authorities. Further, the Tribunal finds that the Applicant was issued with a warning by the Iranian authorities for failing to appear in court. Considering the cumulative evidence before it, in the context of the passage of time since the Applicant left Iran in 2013, the Tribunal finds that the Applicant would be likely to come to the attention of the authorities on return to Iran.
The Delegate cited the following Country Information in their decision, in relation to the Applicant’s underground [business]:
Under the Iranian Constitution, private broadcasting is illegal and the Iranian government maintains a monopoly over all television and radio broadcasting facilities through the government-owned Islamic Republic of Iran Broadcasting. Radio and television programming reflects the government’s political and socio-religious ideology. Country information indicates that the Iranian government sees satellite channels as a ‘soft war’ being waged by the West against their rule, with the intention of undermining the country’s religious and cultural beliefs. Satellite dishes are illegal in Iran. The Iranian authorities periodically raid private homes and confiscate satellite dishes, and confiscated dishes are destroyed.
The DFAT Country Information Report for Iran, dated 24 July 2023, offers the following relevant information in relation to the treatment of returnees:
2.204 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.
The Tribunal finds that the Applicant’s illegal distribution of [products] is a form of political activism by him, for the purposes of providing access to banned media resources. The Tribunal further accepts that the Applicant’s evidence, together with the summons/warrant, indicate that he had been the subject of adverse official attention prior to departing Iran.
Is there a real chance the Applicant will be persecuted if returned to Iran?
If the Applicant were to return to Iran now or in the reasonably foreseeable future, the Tribunal accepts that the Iranian authorities would be aware of the Applicant’s seeking asylum in Australia, through the disclosure by the Department. Given the lengthy period of time he has now spent in Australia, the Tribunal thinks it plausible that the authorities would be suspicious and likely to question the reasons for his departure and return, leading to renewed interest in the outstanding summons/warrant. The Tribunal finds that chance is not remote, and considers that the length of time he has been absent for will serve to increase the level of scrutiny he will face from the authorities.
On being questioned and detained, and then possibly charged in relation to summons/warrant, the Tribunal finds that there is a real chance the Applicant would face treatment from the authorities that constitutes serious harm, being torture, cruel, inhuman or degrading treatment, either in detention or if he is imprisoned for any period of time.
The Tribunal finds that such treatment would be for the essential and significant reason of his actual and imputed political opinion, that the persecutor in this case is or is likely to perceive his illegal [business], long period in Australia, and his seeking of asylum, to amount to the expression of an anti-regime opinion.
As the Iranian regime exercises effective control over Iran, the real chance of persecution relates to all areas of Iran.
There is no effective protection available to the Applicant, nor is there any modification of his behaviour he could undertake, given the information about the Applicant’s [business] and lengthy stay in Australia as an asylum seeker is available to the Iranian authorities. For the avoidance of doubt, any charges that the Applicant was subjected to on return, arising from his illegal [business], would be on the basis of laws crafted to remove genuine political dissent, and suppress anti-regime opinions.
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). As the Tribunal has reached this conclusion in relation to the Applicant’s actual or implied political opinion, it is not necessary for the Tribunal to consider the balance of the Applicant’s claims.
Conclusion
For the reasons given above, the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(a) of the Migration Act.
Bridget Cullen
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.
…

[2024] AATA 2600

28 March 2024

Key Legal Topics

Areas of Law

Immigration

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