2117914 (Refugee) [2025] ARTA 1791 (6 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2117914
Tribunal:General Member A Anderson
Date:6 August 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 06 August 2025 at 11:07am
CATCHWORDS
REFUGEE – protection visa – Iran – particular social group – Muslim women who renounce Islam, are atheist and express feminist and anti-regime political opinions – fears being arrested, tortured, imprisoned, raped and killed – promotes atheism on social media – started charity for vulnerable women – distributed seminars to women about what is false in Islam, women’s rights and atheism – threatened for promoting apostasy and corruption on earth, insulting Islam and acting against national security – severe depression, anxiety and stress – since the ceasefire, the crackdown on dissidents and their rates of executions have intensified – political prisoners at particular risk of torture – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister on 24 November 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 national of Iran, applied for the visa on 23 February 2019. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations by Australia.
The applicant applied for review of the delegate’s decision with the Tribunal[1] on 30 November 2021.
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 28 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. On his request, the representative attended the hearing remotely via video link.
BACKGROUND
The applicant is [an age]-year-old woman born in Tehran,…
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CaseChat Overview and Summary
This matter concerns the applicant's application for a protection visa. The applicant is a [an age]-year-old woman who was born in Tehran, Iran. She is an atheist and has been promoting atheism on social media. She is a former member of the group of women who are Muslim, have renounced Islam, are atheist, and express feminist and anti-regime political opinions. The applicant fears being arrested, tortured, imprisoned, raped and killed if she returns to Iran. The applicant's application for a protection visa was refused and the Tribunal was required to determine whether the Tribunal should set aside the delegate's decision and substitute its own decision, affirm the delegate's decision or remit the matter for reconsideration.
The key legal issues in this case were whether the Tribunal should remit the matter for reconsideration and if the applicant satisfies the criteria for a protection visa under the Migration Act 1958 (Cth). The applicant submitted that there are reasonable grounds to believe that she would be subjected to significant harm, as defined in section 36(2A) of the Act, if she returns to Iran. The delegate found that the applicant's fear of persecution was not well-founded because she could relocate to an area of Iran where there would not be a real risk of persecution. The Tribunal found that there was insufficient evidence before the delegate to make this finding and remitted the matter for reconsideration.
The Tribunal found that there were no reasonable grounds to believe that the applicant would be able to relocate to an area of Iran where there would not be a real risk of persecution. The Tribunal also found that the delegate did not have regard to all the material before it, including the applicant's evidence that she is a person of interest to the police in Iran and that she has a profile with the authorities as an active promoter of atheism. The Tribunal found that the delegate failed to consider the applicant's prospects of relocation within Iran and the real risk that she would be subjected to significant harm if she returns to Iran.
The Tribunal set aside the delegate's decision and remitted the matter for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act. The Tribunal found that the delegate erred in finding that the applicant's fear of persecution was not well-founded because she could relocate to an area of Iran where there would not be a real risk of persecution. The Tribunal found that the delegate failed to have regard to all the material before it and did not make a finding as to the applicant's prospects of relocation within Iran. The Tribunal found that the delegate's decision was unreasonable and remitted the matter for reconsideration.
The key legal issues in this case were whether the Tribunal should remit the matter for reconsideration and if the applicant satisfies the criteria for a protection visa under the Migration Act 1958 (Cth). The applicant submitted that there are reasonable grounds to believe that she would be subjected to significant harm, as defined in section 36(2A) of the Act, if she returns to Iran. The delegate found that the applicant's fear of persecution was not well-founded because she could relocate to an area of Iran where there would not be a real risk of persecution. The Tribunal found that there was insufficient evidence before the delegate to make this finding and remitted the matter for reconsideration.
The Tribunal found that there were no reasonable grounds to believe that the applicant would be able to relocate to an area of Iran where there would not be a real risk of persecution. The Tribunal also found that the delegate did not have regard to all the material before it, including the applicant's evidence that she is a person of interest to the police in Iran and that she has a profile with the authorities as an active promoter of atheism. The Tribunal found that the delegate failed to consider the applicant's prospects of relocation within Iran and the real risk that she would be subjected to significant harm if she returns to Iran.
The Tribunal set aside the delegate's decision and remitted the matter for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act. The Tribunal found that the delegate erred in finding that the applicant's fear of persecution was not well-founded because she could relocate to an area of Iran where there would not be a real risk of persecution. The Tribunal found that the delegate failed to have regard to all the material before it and did not make a finding as to the applicant's prospects of relocation within Iran. The Tribunal found that the delegate's decision was unreasonable and remitted the matter for reconsideration.
Orders
Orders of the court
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Background
Background to the litigation
The applicant was represented in relation to the review. On his request, the representative attended the hearing remotely via video link.BACKGROUND The applicant is [an age]-year-old woman born in Tehran, Iran. Her parents [and siblings] reside in Iran. In her visa application form, she indicated she is an atheist. The applicant worked as an [Occupation 1] in Iran. She has a Bachelor and Master of [Area of study 1]. In Australia, the applicant works as an [Occupation 1]. The applicant arrived in Australia [in] September 2017 as the holder of a Subclass 476 Skilled Graduate visa. She lodged her application for a protection visa on 23 February 2019. Evidence before the Department In her visa application form, the applicant stated that she left Iran because she experienced several forms of discrimination as a woman and because she was not allowed to express her opinions about women’s rights, compulsory hijab or the destructive role religion plays in weakening social cohesion. If she had done so, she would have faced severe consequences from the Islamic regime. In addition to being obliged to wear hijab and being unable to express her criticisms, the applicant stated that on several occasions since she was a teenager she was stopped and humiliated by the Basij and morality police because of her ‘un-Islamic’ appearance. She stated that she feared arrest, torture and imprisonment on return to Iran as she has been studying religion in Australia. She stated that she was agnostic and did not practice as a Muslim when she left Iran but that over time in Australia, she has become an atheist. She stated that she had been promoting atheism on social media as she believes that Iran cannot become an open society unless Iranian youth replace their hatred for religion with constructive criticism. The applicant stated that she feared she has a profile with the authorities as an active promoter of atheism. The applicant subsequently obtained representation (her previous representation) and attended a protection interview on 15 April 2021. The Tribunal has listened to the audio recording of this interview. The departmental interview and post-interview submissions The delegate’s decision record indicates that at the protection interview of 15 April 2021 the applicant provided further claims in relation to her promotion of atheism, namely that she started a charity with a friend named ‘[Friend A]’ for vulnerable women and that she used [Social media 1] in October 2018 to distribute seminars to women about what is false in Islam, women’s rights and atheism. She stated that she had received threats from the women’s husbands and that shortly after she lodged her protection visa application, she had heard that her friend [Friend A] and several other women had been detained and questioned by the authorities and had given her name as the person responsible for spreading anti-Islam beliefs. Subsequently she learned through a phone call with a contact in the police, Mr [A], that she was a person of interest to the police.
Evidence
Evidence Before The Court
The applicant arrived in Australia [in] September 2017 as the holder of a Subclass 476 Skilled Graduate visa. She lodged her application for a protection visa on 23 February 2019. Evidence before the Department In her visa application form, the applicant stated that she left Iran because she experienced several forms of discrimination as a woman and because she was not allowed to express her opinions about women’s rights, compulsory hijab or the destructive role religion plays in weakening social cohesion. If she had done so, she would have faced severe consequences from the Islamic regime. In addition to being obliged to wear hijab and being unable to express her criticisms, the applicant stated that on several occasions since she was a teenager she was stopped and humiliated by the Basij and morality police because of her ‘un-Islamic’ appearance. She stated that she feared arrest, torture and imprisonment on return to Iran as she has been studying religion in Australia. She stated that she was agnostic and did not practice as a Muslim when she left Iran but that over time in Australia, she has become an atheist. She stated that she had been promoting atheism on social media as she believes that Iran cannot become an open society unless Iranian youth replace their hatred for religion with constructive criticism. The applicant stated that she feared she has a profile with the authorities as an active promoter of atheism. The applicant subsequently obtained representation (her previous representation) and attended a protection interview on 15 April 2021. The Tribunal has listened to the audio recording of this interview. The departmental interview and post-interview submissions The delegate’s decision record indicates that at the protection interview of 15 April 2021 the applicant provided further claims in relation to her promotion of atheism, namely that she started a charity with a friend named ‘[Friend A]’ for vulnerable women and that she used [Social media 1] in October 2018 to distribute seminars to women about what is false in Islam, women’s rights and atheism. She stated that she had received threats from the women’s husbands and that shortly after she lodged her protection visa application, she had heard that her friend [Friend A] and several other women had been detained and questioned by the authorities and had given her name as the person responsible for spreading anti-Islam beliefs. Subsequently she learned through a phone call with a contact in the police, Mr [A], that she was a person of interest to the police. On 28 April 2021, the applicant’s representatives provided the following documents to the Department: a.Translation of recorded voice conversation with Mr [A] (warning the applicant she is a person of interest to the police in relation to her charity work) on 12 March 2019 at 6.03pm;b.Threatening text messages and translations, dated 29 January 2019 and 2, 4, 12 and 28 February 2019;c.Photographs of the applicant’s charity work (depicting food supplies, including supplies being distributed to unknown women, men and children);d.Skills assessment letter from [National body for Occupation 1] dated 5 November 2018;e.Translations of three letters of service from the applicant’s previous employers in Iran; f.Translation of social security records listing the applicant’s places of employment in Iran.The delegate’s decision
Decision
Reasons for decision
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.DECISION The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.Date of hearing: 28 July 2025Representative for the Applicant: Dr Sirous Ahmadi (MARN: 0854826)ATTACHMENT - 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.…
Ratio Decidendi
Legal Principle Established
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