2103091 (Refugee) - [2024] AATA 2174

2103091 (Refugee) [2024] AATA 2174 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Mary O'Callaghan
CASE NUMBER:  2103091
COUNTRY OF REFERENCE:                   Iran
MEMBER:Jessica McLeod
DATE:22 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 22 March 2024 at 12.09pm

CATCHWORDS
REFUGEE – protection visa – Iran – arrival by sea with members of family unit wife and two children – not unauthorised maritime arrivals and fast track applicants as defined – second application made after birth of third child – fourth child born after delegate’s decision not an applicant – ethnicity – original claim as stateless Faili Kurds retracted – advised by people smugglers – Iranian Kurds – accused of stealing from workplace, fired and interrogated – no charge, unhindered departure and no independent evidence of adverse interest – religion – non-committed Muslims converted to Christianity in Australia – attendance, baptism and activities and development of commitment – some claims and evidence embellished – supporting statements and photos – genuine conversion not for purpose of strengthening claims – political opinion – second applicant’s online activism in women’s movement – family questioned – gender – wife and daughters – length of residence, westernised lifestyles and mental health, and children’s language – country information – religious conversions not recognised – modification of behaviour not reasonable, effective protection measures not available and chance of harm relates to all areas – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5(1), 5H(1)(a), 5J(1), 36(2)(a), 65, 91K
Migration Regulations 1994 (Cth), r 2.08(1)(b)
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 (2021) 285 FCR 667

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 1 March 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Iran. They are part of a family group comprised of Applicant 1 (the applicant husband), Applicant 2 (the applicant wife) and Applicants 3, 4 and 5 (the applicant children). There is also a fourth child in the family born in [Year] who is not an applicant in this review.[1]
[1] As the fourth child of the family was born in [Year], after the primary decision was made in 2021, there is no deemed visa application for him and reg. 2.08(1)(b) is not satisfied. The Tribunal does not have jurisdiction in respect of this child.
According to Departmental records, Applicants 1 ,2, 3 and 4 arrived in Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2103091 (Refugee)

Details

AGLC: 2103091 (Refugee) [2024] AATA 2174
Case: [2024] AATA 2174
Decision Date: 22 March 2024

CaseChat Overview and Summary

The applicants, a family unit including parents and children, sought protection visas. Their initial claims of statelessness were retracted and replaced with claims based on ethnicity, religion, political opinion, and gender. The dispute concerned whether these revised claims established a well-founded fear of persecution under the Migration Act 1958 (Cth). The matter was before the Tribunal for review.

The primary legal issues before the Tribunal were whether there was a real chance that the applicants would be persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion if returned to Iran, and if not, whether there were substantial grounds for believing that their removal to Malaysia would result in a real risk of significant harm. The Tribunal was required to consider the applicants' claims of conversion to Christianity, the second applicant's online activism, and the gender-related risks faced by the female applicants and children in Iran, in light of relevant country information and Ministerial Directions.

The Tribunal accepted the applicants' explanation for their initial false claims, finding it did not adversely impact their overall credibility. It accepted that the applicants were Iranian citizens of Kurdish ethnicity. The Tribunal found that while the first applicant did not face a real chance of persecution for his political opinions, the female applicants and the Australian-born child faced a real chance of persecution due to their gender, religious conversion, and westernised lifestyles, which could lead them to inadvertently or deliberately push moral boundaries in Iran. This risk was exacerbated by the country information indicating severe penalties for non-compliance with mandatory hijab laws and online activism critical of the regime. The Tribunal concluded that the female applicants and the Australian-born child were refugees under section 5H(1) of the Act, owing to a well-founded fear of persecution based on their gender, religious conversion, and imputed political opinion, and that effective protection measures were unavailable in Iran.

The Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy the criterion in section 36(2)(a) of the Migration Act, finding that they are all refugees and that Australia has protection obligations towards them.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEIdentity / Nationality / Background The applicants claim to be Iranian citizens of Kurdish ethnicity. Apart from Applicant 5 (who was born in Australia) they claim to be from [Location] in Ilam Province, Iran. Initially, in their Entry Interviews conducted a few weeks after their arrival, Applicants 1 and 2 claimed that they and their children were stateless, undocumented Faili Kurds. They later advised this to be false, along with some other incorrect information about their backgrounds and experiences in Iran which had flowed from their statelessness claim. They provided documentation evidencing their and Applicants 3 and 4’s Iranian nationality[3]as well as corrected background and personal histories. When asked about their retracted claims in their protection visa interview and Tribunal hearings, Applicant 1 explained that he and Applicant 2 had initially lied to Australian authorities about being undocumented on the advice of the people smugglers (who had taken the family’s passports) and others on the boat who on observing their Kurdish ethnicity, suggested they claim to be undocumented. They were also scared and feared that if they provided their genuine documents, information about them could reach the Iranian authorities. I accept this explanation and I do not consider that the initial falsification adversely impacts their overall credibility or casts doubt upon the other evidence they have provided of their identity and nationality, or protection claims.[3] The documentary evidence included (1) birth certificates for Applicants 1, 2, 3, and 4; (2) Iranian National Identity Cards and marriage certificate for Applicants 1 and 2; (3) an Iranian Driver’s Licence and Military Service Completion Card for Applicant 1. I place weight on the documentary evidence now provided, their Kurdish and Farsi language skills demonstrated in their various Departmental interviews and Tribunal hearing, and the updated evidence Applicants 1 and 2 have provided as to their biographical narratives and backgrounds in Iran. I accept that Applicants 1, 2, 3, and 4 are Iranian citizens of Kurdish ethnicity from Ilam province in Iran. Applicant 5 was born in Australia[4] but as children born to Iranian fathers generally acquire citizenship at birth regardless of where they were born[5] and that there is no information suggesting she would not have acquired Iranian nationality in this manner, I also accept Applicant 5 is an Iranian citizen. [4] Applicant 5’s Australian birth certificate has been provided.[5] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', Department of Foreign Affairs and Trade, 3 December 2014, CIS2F827D91722

Decision

Reasons for decision

The UNHRC and the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran have expressed concern above a bill which has been introduced to support the family by promoting the culture of chastity and hijab. The bill sets out measures to (a) increase punishments for acts and promotion of non-compliance; (b) spread enforcement powers across State institutions; (c) make private actors liable for both compliance and enforcement; and (d) extend existing gender segregation in various areas, including universities, hospitals and public offices and spaces. The bill does also provide for a dress code applicable to men, but the UNHRC has remarked that it clearly targets women and exacerbates the already fundamentally discriminatory legal framework governing the mandatory hijab for women and girls. The bill also addresses online content, criminalising online expression of views critical of the mandatory hijab.[34] It provides for severe punishments for women and girls. Although the bill is undergoing some revisions, officials have instructed the police not to wait for its approval, and to implement it immediately.[35] As a result, the authorities have imposed fines and closed numerous businesses, including cafes, restaurants, pharmacies, private doctors’ offices, travel agencies and private companies for not adhering to the mandatory hijab laws. Thousands of individual women also have been penalised for not wearing the hijab appropriately while travelling in a car with the penalties including among other things, the confiscation of cars and referral to the judiciary.[36] instances of attempted and violent arrests continued to be reported, against women and girls who have defied the mandatory hijab laws in public. In October 2023, a 16 year old girl died following an allegedly following an altercation for her failure to wear a hijab in a Tehran metro carriage.[37] Physical mistreatments and other harsh punishments such as being made to wash dead bodies and referral to psychiatric treatment have recently been imposed for non-compliance.[38]The State authorities have also publicly warned women and girls that they would be deprived of education and health if they were found in violation of the mandatory hijab laws and regulations.[39][34] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024[35] UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024[36]UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024; DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024[37] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024[38] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 [39]See (in Persian): type="1">DFAT assesses that women perceived by the authorities to be pushing Iran’s moral boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.[40] I accept, given the accumulation of factors noted above specific to this family, that Applicants 2, 3, 4, and 5 would struggle to conform and either deliberately or inadvertently, push these moral boundaries. [40] DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043 Having regard to Applicant 2’s social media posting as well, country information suggests that individuals who repeatedly post content critical of the regime, its institutions or policies or who are deemed to be pushing moral boundaries may attract adverse attention from the authorities, including individuals based abroad.[41] In recent years, people have been arrested and detained and many have been harmed in custody for online activities and postings on Instagram, Telegram and other social media platforms for ‘insulting the Prophet’, ‘connection with opposition groups’ and ‘insulting the police.’[42] UNHRC has also reported that Iranian authorities have recently threatened, intimidated, summoned and arrested persons in connection with protest-related content posted on social media platforms. Such content included messages of solidarity with protesters, reports of violations committed by the State, pictures posted by injured protesters and offers of legal and medical assistance for protesters and their families. The authorities have used social media content as evidence for criminal charges on various grounds, such as “propaganda against the system”, “spreading lies” and “insulting the Supreme Leader” and in such cases, the content of personal Instagram accounts has been used as evidence during criminal proceedings for charges that carried heavy punishments, including the death penalty.[43] [41] DFAT, ‘DFAT Country Information Report: Iran’, Department of Foreign Affairs and Trade, 24 July 2023, 20230724110043; Immigration and Refugee Board of Canada, 'IRN201321.E - Iran: Monitoring of Iranian citizens outside of Iran, including political opponents and Christians, by Iranian authorities; monitoring of Iranian citizens in Canada; consequences upon return to Iran (2021–March 2023)', 20230414091421 [42] United Nations General Assembly, 'Situation of human rights in the Islamic Republic of Iran (14 May 2021)', 14 May 2021, 20210624120211; Freedom House, 'Freedom on the Net 2023 - Iran', 4 October 2023, 20231005083514; Freedom House, ‘Freedom on the Net 2020 - Iran', Freedom House, 14 October 2020, 20201016084814 Huffington Post (US) ‘Iran Tightens Its Grasp on Telegram Use’, Huffington Post (United States), 6 June 2017, CXC9040669094; Center for Human Rights in Iran (United States), ‘Three Young Iranian Men to Serve 12 Years in Prison For 'Insulting' Social Media Posts’, 28 April 2017, CXC9040666693; International Campaign for Human Rights in Iran (United States), ‘Security Agencies and the Prosecution of Online Activists’, 11 November 2014, CX1B9ECAB9307; [43] UNHRC, ‘UNHRC Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran - A/HRC/55/62’ 9 February 2024; UNHRC, ‘UNHRC Report of the Independent International Fact-finding Mission on the Islamic Republic of Iran - A/HRC/55/67 (2 February 2024)’, 2 February 2024I note Applicant 1’s participation in the Women, Life, Freedom movement and other demonstrations, and his opinions as to the treatment of women and girls in Iran and his support and fears for his wife and daughters. However, I am not of the view that he himself is of any interest to the authorities for these reasons or that he would be targeted in Iran for such things. I am not satisfied he faces a real chance of persecution for these reasons. However, as above, I have found him to be a refugee on religious grounds. As for Applicants 2, 3, 4, and 5, I accept they would struggle to conform to the legal expectations and social and religious norms and that they would either deliberately or inadvertently, push the moral boundaries to which DFAT and the other country information refer. I accept that in doing so, and noting Applicant 2’s strong, evidenced feelings against the regime, their 11 year stay in Australia where they have grown accustomed to free expression and association and non-conservative dress and the children have little to no experience with Iran and Islamic culture and rules, and few Persian and Kurdish language skills, and that they are women and girls who – aside from being religious converts – do not practise or believe in Islam and are of an ethnic minority which itself faces discriminatory treatment, and noting the discriminatory societal attitudes towards such groups in addition to official, I find that there is more than a remote chance that Applicants 2, 3, 4, and 5 will come to the adverse attention of the Iranian authorities for one or a combination of these reasons. I accept that should that happen, they will face a real chance of being harassed and arrested or otherwise detained and deprived of their liberty. During such detention too, I accept there is a real chance they will be subjected to significant physical harassment or ill-treatment or other harms that would amount to serious harm. Similarly, to my consideration of Applicant 5’s religion, I find that although she is under the age of criminal responsibility and would not be targeted in the same way as her mother and sisters may be, I nonetheless accept that she faces a real chance of official and societal discrimination which would cumulatively, amount to persecutory harm.I am satisfied this real chance would arise because of their gender and/or their gender combined their membership of a minority ethnic group, their non-adherence to Islam and/or their faith, exacerbated by their westernised mannerisms or imputed western political opinion. I am satisfied that various iterations of these such profiles satisfy the definition in s 5L(a), (b) and (c) and that s 5L(d) does not apply. For Applicant 2, I find it also arises from her actual political opinion against the Islamic Iranian regime. I find that their gender and or and/or their gender combined their membership of a minority ethnic group, their non-adherence to Islam and/or their faith, exacerbated by their westernised mannerisms or imputed western political opinion are equally the essential and significant reasons for the persecution (and for Applicant 2, her actual political opinion as well), as required by s 5J(4)(a) and that the persecution involves serious harm, as required by.s5J(4)(b) and systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group or persons with the applicants’ profiles and is non-random. As above, I am satisfied that the Iranian regime and authorities exercise effective control over almost all areas of the country, and as the harm feared by the applicants would be inflicted by the authorities or condoned by them, I find that effective protection measures are not available to the applicants and that the real chance of harm relates to all areas of Iran. Given the real chance of harm arises as a consequence of Applicant 2, 3, 4, and 5’s gender and characteristics or convictions that I consider are now fundamental to their identity, and out of Applicant 2’s true political beliefs and past actions, I do not consider there are any reasonable steps the applicants could take to modify their behaviour so as to avoid a real chance of harm. I am satisfied that Applicants 2, 3, 4 and 5’s fear of persecution on these bases is well-founded. I find that on this basis, they are refugees within the meaning of s 5H(1) of the Act. CONCLUSIONSI am satisfied that the applicants’ fear of persecution on the basis of their conversion to Christianity, Applicants 2’s online political activism, and for Applicants 2, 3, 4 and 5 their gender and expression of their identity, is well-founded. I find that they are all refugees on one or more of these bases and are owed protection obligations pursuant to s 36(2)(a). For the reasons given above the Tribunal is satisfied that each of the applicants is a refugee and a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a). Given this finding, while the applicants have raised other relevant claims related to their Kurdish ethnicity and other factors, I have not given them in-depth consideration or made any findings on those other claims for protection. DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.Jessica McLeodMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…United States ‘2022 Report on International Religious Freedom: Iran’,15 May 2023, 20230516090011; Article 18, Middle East Concern, Open Doors, Christian Solidarity Worldwide, '2023 Annual Report: Rights Violations Against Christians in Iran', 19 February 2023, 20230622154640Article 18, ‘Three Christian women held incommunicado for 40 days face court hearing on unknown charges’, 30 June 2023, 20230707110316; Asia News IT, ‘Three Christian women arrested without charges to go on trial in Iran’, 1 July 2023, 20230707110732Article 19 (United Kingdom), ‘Tightening the Net: Online freedoms in Iran following Rouhani’s reelection’, 17 July 2017, CISEDB50AD4882; Agence France Presse (France), ‘Iran rounds up 450 social media users for 'immoral activities'’, 23 August 2016, CX6A26A6E8281

Ratio Decidendi

Legal Principle Established

The issues in this review, therefore are whether there is a real chance that the applicants would be persecuted for a s.5J(1)(a) reason if they returned to Iran for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act. 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 EVIDENCEIdentity / Nationality / Background The applicants claim to be Iranian citizens of Kurdish ethnicity. Apart from Applicant 5 (who was born in Australia) they claim to be from [Location] in Ilam Province, Iran. Initially, in their Entry Interviews conducted a few weeks after their arrival, Applicants 1 and 2 claimed that they and their children were stateless, undocumented Faili Kurds. They later advised this to be false, along with some other incorrect information about their backgrounds and experiences in Iran which had flowed from their statelessness claim. They provided documentation evidencing their and Applicants 3 and 4’s Iranian nationality[3]as well as corrected background and personal histories. When asked about their retracted claims in their protection visa interview and Tribunal hearings, Applicant 1 explained that he and Applicant 2 had initially lied to Australian authorities about being undocumented on the advice of the people smugglers (who had taken the family’s passports) and others on the boat who on observing their Kurdish ethnicity, suggested they claim to be undocumented. They were also scared and feared that if they provided their genuine documents, information about them could reach the Iranian authorities. I accept this explanation and I do not consider that the initial falsification adversely impacts their overall credibility or casts doubt upon the other evidence they have provided of their identity and nationality, or protection claims.[3] The documentary evidence included (1) birth certificates for Applicants 1, 2, 3, and 4; (2) Iranian National Identity Cards and marriage certificate for Applicants 1 and 2; (3) an Iranian Driver’s Licence and Military Service Completion Card for Applicant 1. I place weight on the documentary evidence now provided, their Kurdish and Farsi language skills demonstrated in their various Departmental interviews and Tribunal hearing, and the updated evidence Applicants 1 and 2 have provided as to their biographical narratives and backgrounds in Iran. I accept that Applicants 1, 2, 3, and 4 are Iranian citizens of Kurdish ethnicity from Ilam province in Iran. Applicant 5 was born in Australia[4] but as children born to Iranian fathers generally acquire citizenship at birth regardless of where they were born[5] and that there is no information suggesting she would not have acquired Iranian nationality in this manner, I also accept Applicant 5 is an Iranian citizen. [4] Applicant 5’s Australian birth certificate has been provided.[5] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Thematic Information Report - Faili Kurds in Iraq and Iran', Department of Foreign Affairs and Trade, 3 December 2014, CIS2F827D91722