2214576 (Refugee)

[2023] AATA 4381

2214576 (Refugee) [2023] AATA 4381 (29 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr David Kenneth Brooks

CASE NUMBER:  2214576

COUNTRY OF REFERENCE:                   Iran

MEMBER:Melissa McAdam

DATE:29 September 2023

PLACE OF DECISION:  Sydney

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 29 September 2023 at 11:54am

CATCHWORDS

REFUGEE – Protection Visa – Iran – honour killing – marrying an Afghan man – Iranian wife-Afghani husband – committing adultery with an Afghan man – change in religious belief and practice – opposition to the Iranian regime’s requirements of, and restrictions upon, women in Iran – participation in anti-regime protests and activity in support or women’s rights in Iran – applicant is unable to acquire citizenship of Afghanistan – no right to enter and reside in Afghanistan – 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 5AAA, 36, 91, 65, 499

Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 September 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in relation to the review.

3. The applicant who claims to be a citizen of Iran, applied for the visa on 12 January 2015.

4. The Tribunal affirmed the delegate’s decision on 14 June 2018.  That Tribunal decision was set aside by the Federal Circuit Court on 21 September 2022 by consent. The Minister conceded that the Tribunal had erred in that it had misunderstood claims and evidence given to it, and that the error could realistically have led to a different assessment of the applicant’s claims. The matter is now before the Tribunal pursuant to an order of the Court.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    Protection visa application

11. The following is a summary of the claims and information the applicant provided in her Protection visa application:

    a.She was born in [year] in Shiraz, Iran. She lived in Shiraz until the time she departed for Australia.  She submitted a copy of her Iranian passport.

    b.She is in a de facto relationship which began in July 2014.

    c.She is Muslim.

    d.Her parents and one brother are living in Iran.

    e.She completed a university degree in [Iran].

    f.She worked as an [occupation] in Iran.

    g.She arrived in Australia in June 2014 on a Student visa.

12. In her Protection visa application form the applicant included the following written statement:

    a.I lived with my parents and a younger brother. As an [occupation] who obtained enough [experience], I decided to set up an [institute]. Actually there were a lot of [institutes] in my city which I needed to have a unique method to compete with them. I found out studying and experiencing an English country can be helpful. I started searching and finally I chose Australia as a good choice in this matter for its multicultural and safe society and good educational system. Although I had a traditional and religious family, I convinced them to allow me to study abroad and come back after 2 years. In fact they were happy about it because they could show off about my study in abroad. As a matter of fact I understood Iranian attitudes narrow minded and, strict so I liked to experience other people's lifestyles and opinions besides my study.

    b.Finally l applied for student visa for [a] University in [a subject]. After following all steps, I got my visa and I travelled to Sydney on [date] of June in [2014]. I lived for 2 weeks with my friends and they helped me a lot to do the basic necessities for living in this city as a newcomer like finding a part time job, share house, opening bank account and tax file number. When I moved to my new accommodation I met [Mr A] as another tenant in same house for the first time. [Mr A] is an Afghan boy who is[age] years old. He used to live in my country but because of many difficulties that he had such as no chance to study, work, properties and so many other problems, he had to leave Iran. Actually his family has lived in Iran for many years due to it is a safer place than Afghanistan.

    c.[Mr A] came to Australia [by] ship. He arrived in Australia on April 2013 and lived 2 months in Christmas camp then he was sent to Melbourne. After around one year he decided to move to Sydney. He rented the same house as I rented. We lived together in the different rooms in a same house. At first I did not care about him because like other Iranians I had a racialist point of view so I did not like Afghan people who I knew as refuges in my country. In Iran people not only do not respect Afghan refugees but also condemn and underestimate them. But in Australia as a multicultural country this issue is different and all nationalities are the same and people respect each other. Living in such a good culture and spending more time with him changed my mind about Afghan people and [Mr A] and I became close friends. We found out a lot of similarities in between and decided to stay with each other and get married. But we confronted some serious problem such as family, culture and government.

    d.Firstly, in Iran government has applied many limitations for Afghans like no identity card, no work permission, no entry to many public places like parks and shrines, no properties, no study, no proper accommodations and so many other difficulties besides too much bad behaviour which Iranians have toward Afghans such as humiliation, insulting and underestimating.

    e.Secondly, in our cultures parents' permission is necessary for marriage especially for the daughters. Because I have high position in my society my parents did not allow me to get married with a guy who is uneducated, 15 years younger and more important his nationality is Afghan. Actually my family completely disagree with it and threat me in different ways. They did not support me financially anymore and they did not call me more for a long time and they said "you are not our daughter any more". They remind me if I get married with him and come back they will hurt us in the worst way such as stabbing or acid which are very common these days in my country. They ask me to follow their tradition which is very strict and narrow minded.  They wanted me to get married with one of my family’s guys who have very different attitudes than me and I do not like them.  They are very angry about me and even it lasts several months they insist on their decision about coming back and I am sure that they will punish me as well even I do not get married with him.

    f.Now I prefer to stay here because I feel safety and freedom. I cannot live with my family anymore.  I found my ideal husband and I want to get married with him and continue my life with him here. Moreover, as I mentioned above I cannot come back because of my strict and so traditional and helpless family and their threats. On the other hand we will have many problems with [Mr A] as an Afghan in Iran. Furthermore as I told they did not support me financially anymore and I have a part job and I cannot afford my education permission costs for other semesters and [Mr A] is a refuge here and he does not have job permission and he cannot help me financially in my education cost.  So it is near to next semester and I could not solve my problems.

    g.Finally, I need help and I hope Australian government support me in this case and help me to live here, continue my education and get married and have my own family safely.

    Departmental Interview, 29 June 2015

13. The following is a summary of the information provided by the applicant in her Department interview:

    a.The applicant’s brother works as an [Occupation 1] in Iran in contracts for the government.  He is married and lives with his wife in another house.  The applicant’s father works as a [occupation], he owns his own business.

    b.The applicant had contact with her mother about a week ago to say hello. She des not speak with her brother and father because they are too angry at her and won’t speak with her.

    c.Her family is religiously strict.  They wanted the best for the applicant including a high education and a rich husband. The applicant was considered of high status as a [occupation].

    d.As a girl her parents’ preferences are more important than hers. Her parents would not allow her to choose a partner without their permission. The man would have to come to her home and then things would be arranged.

    e.Once the applicant met an [Occupation 1] with a good family. The applicant was about [age] years old at the time.  They had some dates but eventually her parents said no he was not for her because his family was at a lower social level.  The applicant knew him for about one month.  His name was [name]. It was hard for the applicant to accept her parents’ rejection of him but she had to.

    f.In Iran the applicant would attend mosque during Ramadan to pray.  She was very busy with work at other times so did not go to the mosque much.  If she was sad or had hopes she would visit a shrine and pray and read the Qoran.  For example before she was coming to Australia she was nervous and went to the shrine with her mother.

    g.Her father goes to the mosque less than the applicant and her mother.

    h.She is most scared of her brother in Iran. She is scared of her father too but more of her brother.  Her brother has connections with the authorities. He has a short temper and he expects the applicant to do what he requires.

    i.In Iran she thought Afghans were disgusting but now she thinks they are better than Iranians.

    j.Her brother threatened the applicant because he doesn’t like to see her with her partner, [Mr A]. Her brother threatened to kill the applicant.  He threatened the applicant twice.  He would do so through his wife and the applicant’s mother.

    k.In Iran the applicant had a good relationship with her brother and they were very close.  He is religious but mostly strict because of Iranian attitudes about the control of sisters.

    l.The applicant had a friend [Mr B] in Australia who is a permanent resident. His wife, [Ms C], [knows the applicant] in Iran.  The applicant lived with them when she arrived. They helped her find a part time job and a place to live in [a suburb].  The applicant accompanied [Mr B] to look at the place. It was modern and clean and close to the applicant’s work, owned by a nice Chinese family. [Mr A] and his friend another male, lived in another room.  The Chinese family lived there too.  They didn’t tell the applicant in the beginning that two other men lived there. The applicant moved in and met [Mr A] in the kitchen during the night and was very surprised. She was shocked because of her culture and religion. She thought maybe she could wait and find another place. She could not move back to [Mr B]’s.

    m.The delegate told the applicant he did not think what she was saying was credible. He put to her that she had stated that she came from a very strict religious upbringing so he would expect her to be more careful and aware about her living arrangements in Australia.  She responded that she had been sleeping on [Mr B]’s lounge and his wife showed that it was enough and time for the applicant to find her own home.  When she met [Mr A] she called [Ms C] and told her there were two Afghan guys there and [Ms C] said that’s okay you can speak Persian to them and it is better for her not to be alone. [Ms C] didn’t want the applicant to come back to their home. [Ms C] also wanted to go to Iran to see her mother and the applicant would not be able to live in the house with just [Mr B] then. The applicant told the delegate he could ask [Mr B] and [Ms C] and the Chinese family to confirm everything she was saying.

    n.[Mr A] was very nice to the applicant at the first meeting so she was not so scared of him. They could share dinner.

    o.At the time she was calling her family every day and she told them about [Mr A] and his friend living there and that they were very good guys and she felt very secure and she would lock her doors. They were still very worried. 

    p.The applicant is engaged to be married.  She and [Mr A] moved into a granny flat together about one month ago.  They set up house together in the flat.  They did not have an engagement ceremony or party. They will for marriage.

    q.[Mr A] was a very, very good person to the applicant.  He would give her a lift from work because he thought it was not safe for her to walk.  The applicant was struggling to become independent in Australia and [Mr A] supported her.  She and [Mr A] are saving money to get married. They want to marry before the end of the year. They are living together in their granny flat like a married couple.  They want to have children together.

    r.All her friends and colleagues think [Mr A] is a very good guy and very good for the applicant to marry. She feels can trust him forever.

    s.The applicant applied for protection early in the year because she had decided to be with [Mr A] by then.

    t.The delegate put to the applicant that there were not many reports of honour killing or acid throwing happening in Iran.  If it does happen it is usually in the rural areas, not in high society.  The applicant responded it does not depend on the city it depends upon the family.  Her family cut off their financial support to push her to return to Iran.

    u.The applicant can’t live in a different city because all of Iranian society will be against her for marrying an Afghan man.  Her family will also find her eventually.

    Delegate’s Decision

14. The Delegate did not find the applicant’s claims credible and did not accept that she has been threatened by her family in Iran, or that she would be harmed by her family if she were to return to Iran.

    Information to the Tribunal

    Pre-Hearing Submissions

15. On 30 April 2017 the applicant’s representative informed the Tribunal that the applicant had recently given birth to a child.

16. On 26 February 2018 the applicant provided a written submission outlining the following:

    I understand that I am attending the hearing to discuss my own case. However, my husband and my minor child’s circumstances are highly relevant. Therefore I will have reference to their
    situation in my submission and hearing.

    I have been married to Mr [A]. [Evidence attached] I will bring the original
    document to the hearing.

    I have other evidence of family photos in social context. [Evidence available upon request]

    In the decision record of my visa application refusal it was mentioned that because my brother
    is educated, the delegate would not believe that I was in danger of being mistreated. Please
    consider that the fact that my brother is educated makes the gap between my husband and my
    parents’ family even bigger and causes serious issues.

    It is not only the physical punishment I am afraid of. The psychological distress is even more
    severe.

    My hometown, the city of Shiraz, is one of the worse places for Afghani or undocumented
    people like my son to live.

    Being undocumented is not the only issue for my son and husband in Iran. The pressure and
    downgrading attitude of the society is even more disturbing. It causes systematic discrimination
    and serious dangers for myself, my child and my husband. Iranian Society imposes systematic
    discrimination against Afghani nationals.

    We are married under Australian marriage registration system. We did not believe in the Islamic
    marriage principles. Having a child [having sex out of Islamic marriage] without religious
    ceremony means that under the Laws of Iran and Afghanistan, we committed adultery and will
    face serious punishment. “Adultery is a capital offense in the Islamic Republic of Iran and
    punishable by flogging, hanging, and stoning.” [ fact that we are a member of a particular social group [Iranian wife-Afghani husband]
    which is a sensitive matter makes it even more serious. People in charge of the judicial matters
    might take it very seriously as there is already prejudice against us.

    My husband cannot enter Iran as he fled Iran. I cannot be separated from my husband and/or
    my child.

    My husband not willing to go to Iran as he suffered a lot as a result of living in there. He also
    does not permit to take my child to Iran. I am not willing to take my child to Iran as he has no
    documents in Iran.

    My brother still does not talk to me. He made threats before. I am still afraid he might harm me
    if I had to go back to Iran.

    Iranian society looks down on us as this is a rare case of marriage [Afghani husband-Iranian
    wife]. Among my relatives, it’s even a bigger issue as they are also aware of the other
    differences we have such as educational level, family financial level, etc.

    My child cannot go to school like other children who have Iranian mothers. There are many
    other services that he cannot have access to.

    Many people refrain from letting property to Afghani families. We will have issues finding a
    good place to live as well. Afghani families can only find properties in infamous very poor
    neighbourhoods.

    If I work in Iran, I will be bullied and made fun of because my husband is an Afghani national.

    I walk with my husband and son in the public or go to restaurants, parks, etc., people will look
    down on me and this makes life very difficult.

    My husband cannot legally have any property or account under his name, even a mobile phone.

1. The applicant also attached an article outlining the criminal code in relation to adultery in Iran and a copy of her Marriage Certificate.

   Tribunal Hearing, 8 March 2018

2. The applicant appeared before the Tribunal (as previously constituted) on 8 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. 

3. At the Tribunal hearing the applicant submitted the following documents:

   -Another copy of her NSW Marriage Certificate recording her marriage to [Mr A] on[date] January 2016.

   -A copy of the NSW Birth Certificate for [name], recording that he was born on [date] and his parents are the applicant and her husband.

4. During the hearing the Member put adverse material to the applicant about the ability to register her marriage in Iran and her contact with her father and brother since coming to Australia.  The Member queried whether the applicant’s husband was a national of Iran, not Afghanistan. The member also queried the applicant’s husband’s rights in Iran and put to him that they were more extensive than he claimed.

   Post-Hearing Submission, 18 March 2018

5. On 18 March 2018 the applicant submitted the following materials to the Tribunal:

   -Articles regarding the situation for Afghan refugees in Iran.

   -Taxation PAYG forms completed by the applicant.

   -The review applicant’s bank statement.

   -An email to and from the Iranian Consulate about how to have the applicant’s marriage to her partner who is an Afghan national, registered in Iran.

   -The applicant’s husband’s father’s Afghan Taskera.

   -An Iranian Refugee Card in the name of the applicant’s husband’s mother “[name]”.

   -A written submission from the applicant.

6. In the applicant’s written submission she states the following:

   I contacted the embassy of Iran. We are not able to register our marriage as we do not have enough documents and they require Islamic marriage. There is still the strong possibility for us to face punishment under the Islamic Punishment Law of Iran for the accusation of adultery.

   My bank statement is attached. I like to clarify that I received my wages in cash. I complied with the taxation rules. I have completed the tax forms and gave it to my employer.

   My husband’s father’s ID [TAZKARA] and his mother’s temporary residence card is attached. These documents prove that my Husband is not an Iranian Citizen. My husband mentioned claimed his mother's card was expired many years ago. We would like to correct the statement. The most recent card was expired in 2017.

   Other evidence is attached regarding harms Afghan refugees suffer from in Iran. The video links are as follows: {links provided}.

   Section 424A letter

7. On 26 April 2018 the Tribunal (as previously constituted), wrote to the applicant under s 424A of the Act stating:

   The Tribunal is trying to determine your husband's nationality. You have only provided copies of his father's tazkera and his mother's Iranian ID card (now out of validity). To verify that your husband is not actually an Iranian citizen rather than an Afghan national as claimed, it is requested that copies of his Iranian ID/refugee card he held at the time of leaving Iran, as well as copies of his parents' and siblings' current, valid, Iranian-issued ID/refugee cards are provided to the Tribunal.

   Submission, 8 May 2018

8. On 8 May 2018 the applicant submitted the following to the Tribunal:

   -A copy of an Afghan passport for ‘[name]’.

   -A copy of an Afghan Identity Card for ‘[Mr A]’, son of [Dad].

   -Another copy of the applicant’s husband’s mother’s Iranian Refugee Card.

   -A written submission from the applicant.

9. In her written submission the applicant states:

   As my husband explained earlier, only his mother was issued a temporary refugee card and the rest of his family were not provided with any documents. The reason was that my mother-in-law entered Iran one year before other members of the family. The regulations were changed at the time and other members of the family could not receive a card.

   A copy of the current refugee card of my mother-in-law is attached.

   My sister-in-law managed to obtain some temporary Iranian visa on her passport after marriage. The visa is expired nearly 2 years ago but it is at least evidence of the fact that my sister-in-law, like her brothers, is not an Iranian citizen. We also managed to find a copy of my brother-in law’s Tazkara which is attached.

   This is the information and evidence we managed to find and attach. Please consider that it is not possible for Afghan nationals to obtain Iranian Citizenship. I believe the temporary residence evidence of my mother-in-law and sister-in-law shows that the whole family are refugees in Iran and we cannot think of any possible way through which my husband could or can obtain Iranian citizenship.

   Tribunal Hearing, 25 May 2018

10. The applicant appeared again before the Tribunal (as previously constituted) on 25 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. 

11. At the second hearing the Member spoke to the applicant’s husband about his and his family’s background and their travel to Iran, via some years in Pakistan.  The Tribunal member asked the applicant’s husband’s questions about his life and situation in Iran and the documentation he should receive from the Iranian authorities.  The Tribunal member asked the applicant’s husband about his religion and he responded he was Muslim but didn’t believe in it. The Tribunal member put to the applicant’s husband that this was not possible and the applicant responded he is Muslim.  The Tribunal member asked the applicant’s husband about his travel to Australia.   The Tribunal member put to the applicant’s husband that there were concerns he was a national of Pakistan or of Iran or a registered refugee in Iran and there were further concerns about his claim to lack documentation.

12. The Tribunal member discussed the applicant’s religion with her and she stated she was raised Muslim but now hates Islam and does not want to follow it.  Her belief in Islam was shaken in Iran and since coming to Australia her religious beliefs have changed.  The Tribunal member put to the applicant that her husband was Muslim so there would be no problems for him marrying a non-Muslim.  The Tribunal put to the applicant that there was information that over 30,000 Iranian women married to Afghan men had their marriages registered in Iran.  The applicant responded she was not aware of this. The Tribunal member put to the applicant there was no country information to support her claim her father and brother would kill her for marrying an Afghan. 

    Post-Hearing Submission, 30 May 2018

13. On 30 May 2018 the applicant submitted the following materials to the Tribunal:

    -Family photographs of the applicant’s husband and his family when he was young.

    -The business card of a lawyer in Iran describing himself as ‘UNHCR Hired’.

    -A translation of a letter from the lawyer in Iran which states:

    According to Article. 180 of the third social, economic and cultural development of the Islamic Republic of Iran, all refugees in the year of 2005 are collectively identified, and Amayesh card will be issued for them, including those who were present at the time in Iran and each member of the family who were not present at the time in Iran are not subject to this plan. Card holders of Amayesh must personally be present at the Office of the Directorate General for Immigration Affairs (BAFJA) to extend their one- year refugee card, otherwise their card will be cancelled.

14. In the applicant’s written statement she outlines the following:

    I did some research and managed to speak with a UNHCR lawyer, [name], in Iran who is working with the refugees. He has sent us a support letter which is attached. [His] business card with his phone number and email address is also attached.

    [Name], the UNHCR lawyer, also suggested one option for the AAT could be contacting the embassy of Iran to check whether my husband is an Iranian citizen or not if AAT finds it reasonable. Hereby, my husband and I both give consent for AAT to check my husband’s citizenship status with the Iranian or Pakistani Embassy.

    As my husband mentioned in the interview, he could not receive an Amayesh Card as he was not present in Iran in 2005.

    Pre-Hearing Submission, 12 September 2023

15. On 12 September 2023 the applicant’s representative submitted the following materials to the Tribunal:

    -Written legal submissions by the representative.

    -A Statutory Declaration by the applicant.

    -A Statutory Declaration by the applicant’s husband.

    -The applicant’s husband’s Afghan Tazkera.

    -A notification by the department of the grant of a subclass 790 visa to the applicant’s husband and their son [name], on 1 September 2020.

    -A letter from the department acknowledging the lodgement of a subclass 851 visa application by the applicant’s husband and their son.

    -A one page transcript of part of the Tribunal hearing held on 25 August 2018.

    -A letter dated 2 September 2023 from the applicant’s treating psychologist.

    -A letter dated 11 September 2023 from the Executive Director of the [School 1] regarding the applicant’s involvement in the school since June 2023.

    -Photographs of the applicant attending the [School 1] School.

    -Anti-Iranian regime [social media] posts by the applicant which include a photograph of her at a protest against the Islamic Republic of Iran in Sydney on 31 March 2023 and 11 February 2023.

16. The applicant’s Statutory Declaration is seventeen pages long. It highlights the following:

    -Her and her husband’s son, [name], was born on [date].

    -Her husband and son have been granted subclass 790 visas and have applied for subclass 851 Resolution of Status visas.

    -Iranians have racist and prejudiced attitudes against Afghans.

    -People in Iran have prejudiced and traditional beliefs about what is and isn’t acceptable for women and girls.

    -There is little chance to think and act differently in Iran. There is no freedom in Iran. To publicly express a different view from the government’s view often means imprisonment or death.

    -The applicant was born Shia and had a well respected [job].

    -Her parents and brother are very religious.  Men and women would meet separately in the family home. 

    -Women in Iran are not allowed to have contact with a man who is not a close relative.

    -At school she was punished for laughing loudly and not wearing her hijab correctly.  Her [age] year old classmate was forced to marry her then boyfriend because they were found together.

    -Higher education is important in the applicant’s family.

    -She was stopped by the Komiteh on occasions while at university for not dressing appropriately. When she and several other students were driving to a café after graduating they were stopped by the Komiteh, and briefly detained, their parents had to come get them and they were fined. This was because they were men and women students together.

    -She observed that cultures in English speaking countries were very different and had more freedom of choice and gender equality than Iran.

    -She questioned Islam in Iran. 

    -She wanted to study in Australia and her parents agreed to this reluctantly.

    -Her parents introduced her to men to try to get her married.

    -She stopped wearing the hijab when she arrived in Australia.  She felt free to think, speak and act differently in Australia. She mixed with Christians and found them very nice.  She also had contact with Hindu, Bahai, and Muslim people. She appreciated living in a country where people can choose their religion freely and live together peacefully.

    -In Australia she stopped fasting and praying in Arabic. She stopped being scared of God. She prayed and talked to God in Farsi and felt God was kind to her. She believes in God and doing the right things in life but she does not follow any particular religion.  She believes all religions have the same God. She respects all religions but follows her own path. This is not acceptable to Muslims and the Government in Iran.

    -Her husband is similar to her. He does not believe in Islam as he had a very bad experience as a child in Afghanistan when the Taleban killed his older brother.

    -The applicant and her husband are not interested in attending a church or a mosque.  They agree their son should be free to choose his own religion when he is old enough. They have chosen a non-religious kindergarten for him.

    -She has changed a lot in Australia and is very happy with her husband and son.

    -She has started attending classes at the [School 1] at [Ms C]’s house.  The classes involve daily meditation.  [School 1] respects all religions and its members identify with a variety of religions including Islam.

    -She describes how her relationship with her husband developed.  Her family told her she could not be with him and tried to convince her to end the relationship.  She and her husband first lived together as a de facto couple. They married in January 2016 in a civil ceremony. When she told her mother she was marrying her mother responded by telling the applicant she should forget her family.  The applicant has cried a lot about this.  Her family think [Mr A] is not appropriate for the applicant to marry because he is Afghan and uneducated.  Her brother told her she had disgraced the family and threatened to kill her. 

    -It is considered against Islam not to have a religious wedding.  It is also considered very bad to have a child outside of marriage.  The Iranian government would not recognise her son because his father is Afghan.

    -Initially her parents would not answer her calls after she and [Mr A] married. Her brother now lives in a different city from her parents and eventually her parents began answering her calls, but she could tell they were still angry with her. She thinks they are hoping she will divorce [Mr A]. They believe she has brought shame on the family. She mostly talks with her mother. She talks with her father a few times each year for Persian New Year, Father’s Day and his birthday.  They just speak for a short time. She has not spoken to her brother since he told her she was not his sister anymore and would not answer her calls. This is heartbreaking for the applicant.

    -She supports the protests in Iran as she has had similar experiences with the authorities and society as a woman in Iran. She informs people on social media about the situation and asks them to support the Iranian people.  She shares information on [social media] about the protests and how women are treated in Iran.  She has about 4,300 friends on [social media]. She knows the Iranian government monitors [social media].

    -She attended protest gatherings in Sydney against the Iranian state on 19 November 2022 and 31 March 2023. She plans to attend another protest on 16 September 2023 in [a suburb].

    -She started to suffer from minor depression because of the conflict with her family in Iran. It developed into severe depression after her son was [born]. She was referred to a psychologist.  Her husband started to help looking after their son more and the applicant started walks in the park.  All of this helped her to feel better.

    -Her depression worsened after her AAT hearings in 2018.  She could not control her crying or tolerate her son’s crying. She thought about suicide. After the Tribunal affirmed the decision she went to her doctor who told her she had severe anxiety and depression and prescribed her some medication.  He also referred her to the psychologist again and suggested changing her behaviours and activities. All this helped her but in June 2022 her medication dosage was increased as she became anxious again about her Tribunal application and thoughts about returning to Iran. She has difficulty focussing upon her work.

    -Her friends in Iran have been stopped and fined and their cars impounded for driving without wearing their hijab properly. Businesses have been told not to let women enter unless they are properly dressed or they will be shut down.  Women including her friends are being refused entry to restaurants and shops.

    -It will be dangerous for her when people learn she does not believe in Islam anymore.  People will also want to punish her for, in their view, committing adultery with an Afghan man.  Her husband’s family live outside of Tehran and are subject to discrimination. They can only get low-paid jobs.

    -She had problems within the Farsi interpreter at her previous Tribunal hearings and felt the interpreter did not convey her responses properly.

    -She and [Mr A] cannot register their marriage with the Iranian Consulate because they have not had an Islamic marriage and do not have an Islamic Marriage Certificate.  It is against her and her husband’s beliefs to have an Islamic marriage ceremony.

17. The applicant’s husband’s Statutory Declaration highlights the following:

    -He sets out his and his family’s background in Afghanistan, Pakistan and Iran.  They left Afghanistan in 2003 after the Taleban killed his brother. Pakistan was unsafe so his mother and aunt went to Iran in 2004. He and his siblings and his father joined them in Iran in 2005.  His mother had an Amayesh card in Iran but the rest of the family were not given any documents.  He received just four years of schooling in Iran and learned basic reading and writing.  He was treated very badly by some Persian people.

    -He experienced a lot of racism as an Afghan in Iran.  He had no status in Iran or in Pakistan.

    -In January 2013 he returned to Afghanistan for about two months to obtain an Afghan passport and stayed in Kabul.  He used the passport to fly to [Country]. From [there] he went to [other countries].  In April 2013 he boarded a boat and travelled to Christmas Island in Australia. 

    -He was held in detention on Christmas Island and then transferred to Curtin Detention Centre in Western Australia.  He was detained there until August 2013 and then went to Melbourne and finally Sydney.

    -His family is Muslim and he practiced Islam with them but he was never a very religious person.  In Australia he felt free to do what he wanted. He stopped praying and fasting and started to drink alcohol sometimes.  He no longer identifies as Muslim.

    -The applicant shares her lessons from [School 1] with him and he finds them very interesting and hopes to enrol with her. 

    -He describes how his relationship with the applicant developed.

    -His parents are happy for him that he is in a relationship with the applicant.  They were initially a bit worried she is Iranian because they know what Iranians think of them. The applicant’s family had a different reaction and do not accept him.

    -He, the applicant and their son cannot go to Afghanistan or Iran as they will be targeted for their beliefs. In Afghanistan he will also be targeted as an Hazara. He and their son cannot get permanent residence in Iran.  Their son cannot get Iranian citizenship because he is Afghan.

    -His family get low wages in Iran and they say it is getting harder to have their residence renewed each six months in Iran.  His father passed away two years ago.

    -He believes in God but does not follow any religion.

    -He describes some misunderstandings and problems with the Farsi interpreters at the applicant’s Tribunal hearings in 2018.

    Tribunal Hearing,19 September 2023

1. The applicant appeared before the Tribunal (as currently constituted) on 19 September 2023 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:

   a.Her husband has just started attending the [School 1] school. He was keen to attend because he saw how it changed the applicant and made her more calm.

   b.The applicant became involved with anti-Iranian regime protests in Australia because as an Iranian woman she felt it was her duty to support the women in her country. In Australia she had experienced being free and having the same rights as a man. Australia gave her many things. She has developed some confidence. In Iran women are told what to do, say, drink and eat. 

   c.She was forced to be Muslim in Iran.  Now she can choose what to believe.

   d.She now respects all religions but she doesn’t like to follow any of them. She worships her God in her mother tongue.  She learned at the [School 1] that she is part of God.  She believes in her conscience and the importance to be good and a helpful person in society. 

   e.She of course believes in God.  [School 1] teaches her the importance to know herself first, through meditation and work on herself, to improve as an honest and helpful person. The spiritual side of her is encouraged.  There are no particular religious rules she needs to follow. She tries to take the good things from all religions, as they all help a person to reach God.

   f.She posts anti-Iranian regime articles in her [social media] account because as an Iranian living in Australia she has the chance to influence others.  She has over 4,000 [social media] friends.  Iranians who are abroad try to post information to support Iranian people, especially women. That was the applicant’s main aim.  A minority of the applicant’s [social media] friends are in Iran. She has a lot of [social media] friends through her [work].

   g.In Iran she had to cover her hair and wear proper full clothes. For women only their face and feet can show. The applicant does not believe women should have to wear the hijab. She doesn’t wear the hijab.  She believes women should be free to wear what they want.

   h.There is workplace discrimination between men and women in Iran.  All the good conditions and higher positions go to men. Women can only get secondary positions. Men in Iran also have more freedom to wear what they wish and go where they want. A man in Iran can reserve a hotel by themself which a woman can’t do.

   Country Information

2. DFAT’s most recent ‘Country Information Report’ on Iran, published in July 2023, contains the following:

   The most recent Presidential election in June 2021 was won by conservative cleric Ebrahim Raisi. The election was characterised by poor voter turnout amid allegations of rigging – many potential rivals were disqualified by the Guardian Council. Raisi, a former judicial head, is subject to US sanctions for human rights abuses including judicial execution of children, his role in crackdowns on protests, and in a commission that ordered thousands of executions of political opponents in 1988.

   …
   The constitution provides for freedom of expression, association, opinion, assembly and religion, if those rights do not violate certain principles, including Islam. In practice, these rights are not typically upheld by authorities.
   …

   Religion

   The CIA World Factbook estimates that 99.6 per cent of Iranians are Muslim, of whom 90 to 95 per cent are Shi’a and 5 to 10 per cent are Sunni. Small religious minority communities including Christian, Zoroastrian, Jewish, Baha’i and Sabean-Mandaean communities make up the remainder.

   Iran is a theocracy with little tolerance for non-Shi’a Islamic confessions. The extent of religious faith and secularism and other matters of religious demography are disputed. …

   Apostasy is not specifically codified as a crime in Iran, however, is nonetheless a crime under Sharia law, which is enforceable under the constitution. Both moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession. The death penalty is a potential punishment but very rare in practice.
   …
   In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.

   A 2020 study from Utrecht and Tilburg Universities found that atheism was quite common; about 20 per cent of people do not believe in God. The study itself points to Iranians being uncomfortable speaking about religion; discussions about it are not tolerated in Iranian society. Figures about the number of atheists in Iran are, therefore, difficult to verify.

   Those who publicly renounce Islam face apostasy charges. According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure.

   DFAT assesses that non-practising Iranian Muslims face a low risk of official and societal discrimination, particularly in the major cities. DFAT assesses that atheists who are open about their non-belief face a moderate level of official and societal discrimination.

   …

   Political Opinion (Actual or Imputed)

   The constitution protects freedom of belief for all Iranians at article 23, freedom for the media at article 24, freedom of association at Article 26 and freedom of assembly at Article 27. These freedoms are conditioned by the requirement that they are not ‘detrimental to the principles of Islam’. Topics deemed sensitive by the government include women’s rights, LGBTI rights, criticism of the regime, relations with the United States and Israel.

   …

   Protests

   Protests are relatively common in Iran and can be violent. Up until September 2022, protests were largely driven by economic issues – low-income earners and working-class people demonstrating against cost-of-living pressures. Most protest action in recent years, including those driven by economic factors, has had an anti-government and anti-regime theme. Sources suggested environmental protests, including protests over water supply issues, also provoke a strong reaction from the regime. Protests can be met with lethal force.

   Mahsa Amini Protests

   On 16 September 2022, a significant protest movement began following the death of 22-year-old Kurdish-Iranian woman, Mahsa Amini, while in the custody of Iran’s morality police. Amini was arrested in Tehran for breaching the strict Islamic dress code by allegedly not wearing the hijab appropriately. The protests, initially led by women and girls, took place across the country. Over the succeeding weeks, the protests garnered broad support, particularly among young people and students, and a range of celebrities and public figures. They have evolved into broader protests against the regime.

   The government response to protest action has been harsh. Iran Human Rights Group estimated that, as at 3 April 2023, at least 537 people including 68 children and 48 women, died during the protests. While the death toll and the causes of death cannot be verified, reports indicate that the vast majority of deaths have been at the hands of security forces either by firearms or beatings. The government has imposed severe sentences on those arrested, including significant jail time, and in some instances, the death penalty. The response by security forces has been particularly harsh in majority Kurdish and Baluch regions.

   While the exact number of death sentences imposed on protesters is difficult to determine, as at 13 January 2023, Iran Human Rights Group estimated at least 109 protesters were at risk of execution. DFAT understands at least 15 death sentences have been confirmed – two of which were carried out in early December 2022, with a further two in early January 2023 and three in May 2023.

   While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.
   …
   In the current climate, DFAT assesses that ordinary protesters face a moderate risk of arrest and official violence but a low risk of on-going official harassment and discrimination.
   …

   Media

   … Use of the internet is common in Iran. Iran employs one of the most extensive Internet filtering regimes in the world, with all Internet flows travelling through a state-controlled backbone. Use of social media is widespread, however censored. Facebook, Twitter, YouTube and Instagram are all widely popular despite being officially blocked. Iranian internet users routinely use virtual private networks (VPNs) to access blocked content. Iranians also use encrypted messaging apps like Signal or WhatsApp, despite these being officially blocked.

   The authorities monitor online content, including social media. Individuals repeatedly posting content that is openly critical of the government, its institutions and policies or deemed to be pushing moral boundaries may attract adverse attention, especially if the content goes viral. This includes individuals based abroad. In 2019, sources told DFAT that Iranians with links to Iran-based foreigners are more likely to have their social media accounts monitored. To avoid detection, persons critical of the Islamic Republic on permitted social media platforms may use aliases to conceal their identity.

   Given the high volume of social media interaction, most of which is unlikely to be of interest to authorities, it is unlikely that every social media user in Iran has their social media comprehensively monitored. Users with a public profile (including with large social media followings, particularly on Instagram) or who are politically active and post about politically sensitive topics (such as minority rights or about topics that are critical of the government) are more likely to be monitored. Iranians with a public profile in Australia may also have their social media presence tracked by the Iranian government. DFAT assesses that journalists, both print and online, who report on protests, sensitive topics or other criticism of the government face a moderate risk of arrest.

   Women

   Wearing the hijab is compulsory. By law, women must have their entire body covered except for face, hands and feet. Some women wear the scarf around their neck or use another form of head covering (for example, a hat). Such women risk arrest, particularly during periodic crackdowns. Younger women are more likely to wear their headscarves in this way. Morality police patrols in public places increased in 2022. Following the protests and outcry sparked by the death of Mahsa Amini at the hands of the morality police, they withdrew from the streets. The morality police have been disbanded but there is little sign that enforcement of hijab laws has ceased, with authorities using denial of services in banks and shops and airports as one way to ensure compliance.

   Sources told DFAT in 2019 that enforcement of Islamic dress codes fluctuates, with checks on dress code violations increasing during holy periods (such as Muharram and Ramadan) and the summer season (when many women tend to adhere to dress codes more loosely due to the heat). In 2019 and more recently, authorities closed a number of restaurants and cafes due to non-observance of the Islamic dress code since and police reportedly monitor women for wearing their hijabs inappropriately or not at all while travelling in vehicles. Where a female is detected with ‘bad hijab’ inside a vehicle, the owner of the vehicle receives an automated text message instructing them to report to a police station and sign a declaration undertaking not to wear or tolerate ‘bad hijab’ again. According to local sources, repeat offenders incur a fine and, concurrently, are requested to settle any outstanding traffic infringements. A failure to do so can result in the impounding of one’s car and potential suspension of licence until all outstanding fines are settled.

   The UN reported in 2019 that three women were arrested after appearing in an online video protesting against the compulsory hijab law on International Women’s Day, including by removing their headscarves. They were subsequently convicted of assembly and collusion in acts against national security, propaganda against the state, and encouraging moral corruption and prostitution. Two of the women received sentences of 16 years’ imprisonment. The third woman was additionally convicted of ‘insulting the sacred’, and received a prison sentence of 23 years and six months.

   Men exert considerable control over women in marriage. For example, women can legally be prevented from leaving the country without permission from their husbands. Husbands can prevent their wives from working if their chosen work is incompatible with the husband’s ‘dignity’. Girls can be married as young as 13 (15 for boys) but marriage is possible at any age with the permission of a judge and the father of the child. DFAT understands several thousand girls under 14 are married, several hundred of whom have children of their own. Human rights organisations have reported an increase in the number of girls as young as nine years old marrying, which they assess may be a consequence of increased economic hardship among rural and poor families.

   For a woman to get a divorce she needs permission from her husband, or evidence he breached the marriage contract, is addicted to drugs, is ‘insane’ or impotent. Men do not need a reason for divorce. Men can have up to four wives, however women can only have one husband.

   At least several hundred women a year are killed in so-called ‘honour’ killings, in which a husband, brother, male cousin or other male relative murders a woman for a perceived insult to the family’s ‘honour’. Perceived insults to honour might include a woman being a victim of rape, having consensual sex outside marriage or getting divorced. The Penal Code does not specifically criminalise honour crimes and, in line with sharia principles, provides for reduced sentences for those who commit them. For example, Article 630 includes provisions on the husband’s right to kill his wife and her lover if they are caught in the act, while Article 303 states that judges cannot issue a ‘retribution crime’ punishment against fathers or grandfathers who kill their children. In cases where authorities have attempted to stop the phenomenon of honour killings by sentencing some perpetrators to long prison terms (as has reportedly occurred in Khuzestan Province), new strategies have quickly evolved to circumvent these punishments, including through hiring third parties to commit the murder. In cases of honour killings, it is extremely unlikely for the head of the victim’s family to demand punishment. Most perpetrators of honour killings therefore serve only a short prison sentence or avoid punishment altogether.

   … Reforms to Iran’s citizenship laws in 2019 allow for Iranian women who have children with non-Iranian men to pass Iranian nationality onto their children (as occurs with Iranian men married to non-Iranian women). However, the new right (which can be exercised once the child turns 18) is subject to security approvals and sources suggest it is currently ‘theoretical’.

   Women and unrelated men cannot socialise by law. However, in larger cities such as Tehran, Tabriz and Shiraz, this is not enforced and it is common to see mixed gender groups exercising or socialising in public. Media and human rights reports note that verbal, physical or online sexual harassment is very common, for example in workplaces and in the street. Such harassment is illegal, however women report that sexual harassment laws are not enforced.

   DFAT is aware of cases where women who have tried to hold workshops to teach women about their rights have been arrested and sentenced to multi-year prison terms. NGOs that attempt to help women risk being shut down.

   DFAT understands gender-based violence, in the form of family violence is common, however is not a crime and generally considered a ‘private matter’. Authorities may be unable or unwilling to provide adequate protection. Some government-run shelters exist for victims. DFAT understands there are several hundred such shelters across the country, as well as a hotline that can arrange social and medical support to women and girls who have experienced family violence. DFAT understands that, as in other countries, family violence worsened during the COVID-19 pandemic and related lockdowns. Spousal rape is not criminalised.

   … Women in Iran have diverse experiences and an assessment of discrimination and violence depends on the individual circumstances of each woman. DFAT assesses most Iranian women face moderate societal discrimination and threat of gender-based violence, including ‘honour’ crimes and street violence. Women perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.

   …

   Detention and Prison

   Prison conditions are widely considered to be poor. In his February 2023 report on the situation of human reports in Iran, UN Special Rapporteur Rehman described conditions in one solitary cell as ‘inhumane’. He noted severe overcrowding, ill-treatment of prisoners including prison guards assaulting prisoners, long periods of solitary confinement that amount to torture and a lack of healthcare (including routine medical care and specialist care during the COVID-19 pandemic).

   The US Department of State’s 2021 Human Rights Report called prison conditions ‘harsh and life threatening’ with food shortages, ‘gross overcrowding’, inadequate sanitary conditions and lack of medical care. The report quotes human rights organisations that note a lack of medical care (sometimes as a form of punishment), contaminated food and water, water shortages, rodent and insect infestations, shortage of bedding, ‘intolerable heat’ and poor ventilation.

   Political prisoners by law should experience better conditions; for example, they do not have to wear prison uniforms, should not be held in solitary confinement unless a judge deems it necessary, and should have better access to the outside world through communication with friends and family, and access to newspapers, radio and television. In practice, this does not occur. DFAT understands political prisoners are at a greater risk of torture than are other prisoners, and in many cases have not been held separately from other prisoners, meaning that the conditions described above apply equally to political prisoners.

1. The Human Rights Watch report, 13 December 2022, ‘Iran: Death Sentences Against Protestors’, states:

   Iranian authorities’ execution of two men in connection with widespread antigovernment protests is a gross miscarriage of justice and a dangerous escalation….. According to human rights groups, revolutionary courts of first instance have issued at least 11 other protest-related death sentences and are expected to try dozens more, including children, for charges that can carry the death penalty.

   The charges against the protesters have included vaguely defined national security charges such as enmity against God (Moharebeh), corruption on earth (Ifsad fil arz), and armed rebellion (baghi). All of the vaguely worded crimes are capital offenses. The rushed trial proceedings, in which defendants are apparently prevented from having a lawyer of their choice, appear to fall grossly short of international standards.

   “The trials of those who are facing capital charges related to protests have been a total travesty of justice,” …. “The defendants are reportedly tortured into confessing, deprived of access to lawyers of their choosing, and rushed through trial proceedings that bypass safeguards in Iran’s own penal code and criminal procedure law.” …

2. The Human Rights Watch report, 3 November 2022, ‘Iran: Thousands of Detained Protestors and Activists in Peril’, states:

   Iranian authorities have escalated their assault against widespread dissent and protests through dubious national security charges against detained activists and grossly unfair trials, Human Rights Watch said today. On October 31, 2022, the head of Tehran Province’s judiciary said that it had issued around 1,000 indictments against those arrested related to protests.

   … An informal network of activists inside Iran, known as the Volunteer Committee to Follow-Up on the Situation of Detainees, said that as of October 30, in addition to mass arrests of protesters, intelligence agencies have arrested 130 human rights defenders, 38 women rights defenders, 36 political activists, 19 lawyers, and 38 journalists, the majority of whom remained in detention. … According to the group, authorities have also arrested 308 university students and 44 children. Over the past three weeks, security forces have repeatedly attacked university campuses with excessive use of force, including teargas, and arrested students. University authorities have barred dozens of students from entering university campuses for participating in the protests. … Since September 16, the protests have spread to at least 133 cities and 129 universities as well as several secondary schools, according to the Human Rights Activists News Agency (HRANA).

   Human rights groups are investigating the reported deaths of at least 284 people, including 45 children. Dozens of security forces have also reportedly been killed, according to state media. Human Rights Watch has documented security forces’ unlawful use of excessive or lethal force including shotguns, assault rifles, and handguns against protesters in largely peaceful and often crowded settings in 13 cities across the country. …

3. On 16 January 2023 the Sydney Morning Herald reported on the mother of an Australian-Iranian protestor being jailed in Iran because of her child’s protest activities in Australia. There were further reports of other relatives of active Iranian Australians being jailed and/or interrogated in Iran due to political activities in Australia.[1]

   [1] Sydney Morning Herald, 2023, ‘Iran cracks down on family of Australian protesters Secret Arrest’, 23 January.

4. In December 2022 the Australian Federal Police were reported to have “urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, expressing concern about state actors monitoring the online presence of people attending protests against the country’s oppressive laws.”[2]

   [2] THE GUARDIAN, 2022, ‘AFP URGES IRANIANS IN AUSTRALIA TO REPORT HARASSMENT BY TEHRAN AUTHORITIES AS ANTI-GOVERNMENT PROTESTS ESCALATE’, 22 DECEMBER.

5. The UK Home Office Country Policy and Information Note Iran: ‘Zina’ (sex outside of marriage and adultery), published in July 2022 includes the following:

   Zina is defined in Iranian law as ‘sexual intercourse of a man and a woman who are not married'. This includes:

   • a person who is married and having a sexual relationship with someone other than their spouse (adultery), and

   • a person who is not married in a sexual relationship with a person who is also not married (sex outside of marriage).

   … Adultery is a specific crime in Iran and can be punishable by disproportionately severe sentences.

   …  Information about the scale and extent of prosecutions and punishments is scarce.

   …  Zina is a criminal offence under the Iranian Penal Code (IPC) and punishable by flogging or death, depending on the nature of the offence or the status of the accused. Though not prescribed by law, prison sentences have also been imposed

   …  Adultery is said to be widespread although the authorities do not usually pursue people unless there is a private complainant. Cases rarely go to court due to the strict evidential standards required to prove that zina has occurred.

   …  Flogging and other sentences continue to be imposed for adultery. In 2017 at least 5 sentences were passed for flogging, imprisonment and/or hard labour. In 2021, 2 women charged and convicted of adultery received 100 lashes each.

   …  It is illegal for unmarried couples to live together, but the practice is reportedly common among young people in Tehran and other large cities, in what are known as ‘white marriages’.  Generally, the police do not arrest people for being in such relationships. If arrested, unmarried couples are taken to their local police station and made to sign a declaration and may have to pay a fine. Authorities generally tolerate unmarried couples who appear together in public, especially in major cities, although modesty rules may be more strictly enforced around election times or other political events

   …  Children born to unmarried parents will be considered illegitimate and the parents will be deemed as having committed zina and may be subject to punishments prescribed by law.

   … An article on children born outside of marriage in Iran, published in March 2022 by Ladan Rahbari of the Department of Sociology, University of Amsterdam, which, as noted by the author ‘… uses literature review and content analysis methods and focuses on the legal codes, press, and media pieces, Shi’i rulings, and academic literature on child “legitimacy” and the unregistered child phenomenon to explore the relationship between the Iranian State’s marriage and parentage law on the registration of children and its consequences of the rights of the child,’ noted ‘… when and why a child is considered “illegitimate,” the notion of zena or zina [Persian and Arabic versions of the same term respectively] becomes relevant.’ The article added ‘… if it is established that a child is born to unmarried parents, the parents will be considered adulterous by law and will be subjected to punishment based on the Islamic Penal Code (often in the form of whipping…). The parents can submit an application for a birth certificate for their child to the court or get married, but none would exempt them from the punishment.’

   … Religious marriage is the only marriage accepted by law. Marriages only become legal after the religious marriage is officially registered. This applies to Islamic marriages and the religious marriages of the 3 recognised religious minorities – Christians, Jews and Zoroastrians. 

   …  The Rahbari article noted ‘… when the parents do not conduct an Islamic marriage, their child will be considered “illegitimate” and cannot be registered at the civil registry through the conventional route.’ The article provided details of the ‘conventional route’ to child registration, which is compulsory by law.

   Iran’s Civil Registration Law indicates that both parents may register the birth of child even if their marriage is unregistered, Civil Registration Law (Article 16), no date, as long as a religious marriage ceremony has been conducted.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant submitted her Iranian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a citizen of Iran. The Tribunal assesses the applicant’s claims against Iran as her country of nationality and receiving country.

7. The applicant claims to fear harm in Iran due to her relationship with an Afghan man; her change in religious belief and practice; and her opposition to the Iranian regime’s requirements of, and restrictions upon, women in Iran.

   Credibility

   Relationship

8. The applicant has claimed that after coming to Australia she began a relationship with her now husband, a person from Afghanistan who has been recognised as a refugee in Australia.  She claims they had a civil marriage in January 2016 but have not had a religious ceremony as neither of them identify as Muslim anymore. They had a child [together].

9. The applicant and her husband’s evidence about their relationship has been consistent over many years. They provided a great deal of personal detail about how they met and how their relationship developed.  The applicant’s husband has accompanied the applicant to each of her Tribunal hearings, including her most recent hearing. The applicant and her husband provided compelling evidence that they continue to be in a committed and supportive relationship together. The applicant has also submitted the NSW Birth Certificate for her and her husband’s child.  The Tribunal accepts that the applicant has been in a relationship with her now husband since 2014 and that they live together with their young child.

10. The applicant submitted a copy of her official NSW Marriage Certificate which records her marriage to her husband in January 2016. The Certificate notes that the ‘celebrant’ for the applicant’s marriage was “[name]”. There is information available on the Internet that [she] is a registered marriage celebrant who describes herself as “an authorised Civil Marriage Celebrant” and fluent in both the Persian and English languages.[3] On the basis of this evidence the Tribunal accepts that the applicant has had a civil marriage to her husband. There is no evidence before the Tribunal that the applicant and her husband have ever had a religious marriage ceremony. The Tribunal therefore gives them the benefit of the doubt that they have not had a religious marriage.

    Religion

    [3] See e.g. [deleted]

11. The applicant claims to have been born Shia Muslim and to have identified as Shia Muslim in Iran. She stated that since coming to Australia she has been motivated to explore other religions. She explained this was because she was considered Muslim by birth and it was forced upon her; she had not had opportunity to explore any alternative in Iran; and that while she believes in God she questioned whether or not Islam was the right choice for her.

12. The applicant provided evidence which the Tribunal accepts that she has been attending [School 1] l classes at her friend [Ms C]’s home and describes the school as one which “respects all religions.”  At hearing the applicant explained that she “tries to take the good things from all religions” and believes that “they all help a person to reach God.” She claims she no longer considers herself Muslim and no longer follows any particular religious rules.  She stated she wishes to draw selectively from all religions in her religious practice and faith.

13. The applicant provided her evidence about her current religious beliefs and practice in a simple and straightforward manner and appeared to be speaking from some genuine conviction about how her attitude towards religion and God has developed since leaving Iran. The Tribunal found her evidence sincere and accepts that while she continues to believe in God she no longer identifies as Muslim or indeed as any of the organised religions. The Tribunal also accepts that the applicant does not adhere to Islam practice or belief but incorporates select aspects of it and of other religions in her religious faith.

    Opposition to Regime

14. The applicant claims she opposes the Iranian regime’s restrictions and requirements regarding women and their behaviour.  She stopped wearing a hijab or head scarf since arriving in Australia. She has also participated in protests held in Australia against the Iranian regime following the killing of Mahsa Amini in September 2022.  The applicant provided evidence of a having a [social media] account to which she has posted anti-regime articles.

15. The applicant presented at her Tribunal hearing without her hair covered and she also submitted photographs taken of her in Australia in which her hair is uncovered.  She explained at hearing that while she personally does not dress immodestly she feels women should be free to wear what they wish. She herself does not wish to wear a head scarf and prefers to dress in a western style.

16. The Tribunal accepts that the applicant no longer wears a head scarf and has made a conscious decision to stop wearing it, in large part based upon an ideological opposition to the requirement upon women in Iran to wear it. The Tribunal also accepts she has a preference for wearing western-styled clothes.

17. The Tribunal accepts the applicant’s photographic evidence that she has participated in public protests in Sydney in 2022 and 2023 against the Iranian regime, and posted anti-regime articles to her [social media] account.

18. The Tribunal notes the question arises as to the applicant’s motivation to publicly protest here against the Iranian regime, and whether she is only doing so to strengthen a refugee claim. 

19. There is no particular evidence before the Tribunal that the applicant’s participation in protest and anti-regime activity in Australia has not been bona fide. According to the available country information the killing of Mahsa Amini galvanised opposition and protest against the Iranian regime to an unprecedented level. The protests have attracted widespread popular support within Iran and amongst the diaspora worldwide. The applicant is an Iranian woman who has experienced the restrictive dress and other behavioural requirements in force in Iran. She has also expressed her views here about her perceptions of the injustices perpetrated by the regime. She spoke comfortably at hearing about her reasons for supporting the protests and being active. She was able to convey that, like many of her Iranian peers, she genuinely wants to join in the rising wave of protests emanating from Iran because of her opposition to the regime and her hope for change.

20. The Tribunal is therefore satisfied that the applicant has engaged in protest activity in Australia for reasons other than strengthening a refugee claim.

    Fear of Harm in Iran

21. Based upon the above the Tribunal accepts that the applicant is an Iranian woman who in Australia has had a civil but not religious marriage to a man from Afghanistan and has had a child with him.

22. Given the applicant has not had a religious marriage the Tribunal accepts she does not possess a religious marriage certificate. The Tribunal accepts that in Iran the authorities will consider that the applicant has had sexual relations outside marriage because her non-religious marriage will not be recognised in law there.  Based upon the available country information the Tribunal accepts that under relevant Iranian laws and how they are applied the applicant will be considered guilty of a ‘zina’ offence and liable to arrest and penalty.  While the country information indicates that not every women in Iran who is known by the authorities to have had has sexual relations outside of recognised marriage is detained or punished, it does happen and continues to happen and the threat of it occurring remains. The Tribunal therefore considers there is a real chance that penalties such as detention, fine, and lashing may be imposed upon the applicant on return to Iran as a result of the authorities considering she has had sexual relations outside of marriage.

23. The applicant also claimed to fear her brother may kill her for marrying an Afghan man. As the Tribunal put to her at hearing it appeared doubtful he would resort to such extreme behaviour. This is particularly so in the absence of any indication of a tendency on his part towards violent behaviour.  The applicant agreed it was unknown what her brother may do and she did not know what his thoughts and intentions may currently be.  In view of the lack of cogent evidence the Tribunal does not accept there is a real chance the applicant’s brother would physically harm her because she has married an Afghan man. The Tribunal does accept there is a real chance he, and her parents, may be disappointed in the applicant’s choice of husband but not that this would result in any serious or significant harm to her.

24. The Tribunal has accepted that the applicant was born Muslim but no longer identifies as Muslim. The available country information indicates that in Iran she would not be free to broadly express her views on religion and reveal her beliefs and religious practice, but could do so within a limited family and friendship circle. The country information indicates there may be some disadvantage in identifying as non-Muslim to the Iranian authorities. The applicant may therefore feel compelled to conceal her religious views, faith and practice from the authorities in Iran. Given the ways, somewhat inevitably, that personal information may be revealed, through gossip, malice or inadvertence, there is some likelihood that the applicant would not be able to successfully hide her religious views and faith from the authorities. However whether the authorities would then cause the applicant serious harm, solely upon this basis, appears remote given the country information referred to by DFAT above that secularism is not uncommon in Iran, religion is generally considered a private matter, and that “how one wished to observe Islam was an individual choice and was not a matter for the state.”

25. The Tribunal has accepted that the applicant actively supports the rights of women in Iran not to wear the head scarf and no longer does so herself. The Tribunal has also accepted that the applicant is engaged in and is supportive of anti-regime protest activity.

26. The Tribunal notes the available evidence that there has been monitoring by the Iranian authorities of the anti-regime protests in countries outside Iran, and this has sometimes resulted in the harassment and detention of family members of protest participants, within Iran.  The Tribunal therefore considers it is plausible there would be more scrutiny by the Iranian authorities of people returning to Iran from countries in which anti-regime protests have occurred, such as Australia, particularly of someone such as the applicant who has been here now for many years. Such scrutiny would likely extend to vigorous and intimidating questioning and an exploration of the applicant’s use of social media while in Australia. The Tribunal therefore considers there is a real chance that the applicant’s participation in anti-regime protest activity and support for women’s rights in Australia will become known to the Iranian authorities upon her return.

27. Further, if the applicant returns to Iran the Tribunal considers that there is a real chance she will continue to participate in the public protests which continue to occur in Iran and to actively support women’s rights there. The available information shows that women are a substantial part of the widespread protests within Iran.  DFAT in its most recent report also assessed that women “perceived by the authorities to be pushing Iran’s moral and religious boundaries face a high risk of official discrimination in the form of arrest, punishment and violence.”

28. The reports highlight the large and growing numbers of arrests, detentions, beatings and other mistreatment of detainees used against protestors as the regime cracks down on their activity. There have also been beatings, shootings, executions, and death sentences imposed upon the protestors. The available information indicates that women protestors have been subject to sexual and gender based violence by the authorities while detained.

1. The Tribunal is therefore satisfied that there is a real chance the applicant will be exposed to serious physical violence, arrest, detention, and serious mistreatment in detention due to her participation in anti-regime protests and activity in support or women’s rights in Iran. 

2. The Tribunal considers that the applicant’s vulnerability to harsh targeting by the authorities in Iran is heightened by her additional characteristics, namely being considered to have committed zina and her disavowal of a Muslim religious identity.

3. The Tribunal finds that the harms the applicant is at risk of in Iran amount to serious harm and that the essential and significant reason for the harm is a combination of the applicant’s gender, religion and political opinion. The Tribunal is also satisfied that the harm is a result of systematic and discriminatory conduct in that it will be done to the applicant intentionally and selectively.

4. As the state is responsible for the harm the Tribunal is not satisfied that the applicant has access to available protection against the harm.  The Tribunal is also satisfied that the risk to the applicant exists in all parts of Iran.

5. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in Iran as defined by s.5J of the Act.

   Section 36(3)

6. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows. These provisions have the effect that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied.

7. The applicant’s husband is a citizen of Afghanistan and possesses Afghan National Identity documents.

8. Under Afghanistan’s Citizenship Law a person who marries a citizen of Afghanistan “in accordance with the Islamic Sharia law” can apply for citizenship of Afghanistan and the application can be approved [Article 18].  The Tribunal notes that the applicant and her husband have not been married in accordance with the Islamic Sharia law as they were married in a civil ceremony.  Further, Article 7 of Afghanistan’s Citizenship Law prohibits dual citizenship.  The Tribunal notes that the applicant is still a citizen of Iran.  Given both these factors it follows that the applicant is unable to acquire citizenship of Afghanistan, under its current nationality laws.

9. There is no other evidence or indication before the Tribunal that the applicant has a right to enter and reside in Afghanistan or any other country.  The Tribunal therefore finds that s 36(3) of the Act does not apply to the applicant.

   DECISION

10. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Melissa McAdam
    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.

    …