2219176 (Refugee)

[2024] AATA 2149

2219176 (Refugee) [2024] AATA 2149 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2219176

COUNTRY OF REFERENCE:                   Iran

MEMBER:Senior Member G.A.F. Connolly

DATE OF DECISION:  05 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 05 April 2024 at 5:47pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit and Family Court remittal – voluntary work with people of Iranian backgrounds – received unsolicited anti-regime material via social media – questioned by security on return visit – introduced by friends to well-connected prospective husband – refused proposal in order to return to studies – threats to applicant and family – no appearance at previous tribunal hearing because of health and death of father – honest and consistent oral evidence, witness’s corroborating evidence and representative’s helpful assistance – consideration of delay and volunteer work – volunteer in community sector likely to come to attention of authorities – brief oral reasons delivered after hearing when application will obviously be successful – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

Oral Decision Delivered

[1]    The practice of this Tribunal is, overwhelmingly, to hear cases and then reserve them, with the Tribunal’s decision and reasons to be communicated to applicants at a later date.

[2]    Owing to the sheer length of this case and its long drawn-out history, its documentary evidence and witness evidence, and my very strong personal preference for protection cases to be resolved sooner rather than later, so that a meritorious applicant can be spared any further needless anxiety or worry, I chose to deliver my decision, favourable to the applicant, immediately after the hearing concluded on Friday, 08 March 2024, with some brief oral reasons.  

[3]    The oral reasons given on 08 March 2024 are here more completely reduced to writing and set out why I made the decision that I did in favour of this applicant and her claim to be a person owed protection obligations by Australia.

PROCEDURAL HISTORY

[4]    This applicant was before this Tribunal in a prior application[1] as well as before the Federal Circuit and Family Court of Australia.[2]  I have read all of the voluminous materials filed in those proceedings that are in the custody of this Tribunal.  This decision and these reasons should resolve and determine, finally, the applicant’s case.

[1] Case 1903014 of 14 March 2022 (Member Goetz).

[2] Case No SYG560/2022 of 22 December 2022.

[5]    The historical facts of this case are set out in detail in the Tribunal’s previous decision[3] but this was one in which the applicant had not appeared to give evidence on her behalf, owing to medical issues and mental health challenges, particularly after the passing of her late father in Iran.[4]  Unlike the first hearing of the applicant’s case in this Tribunal, I have had the obviously considerable benefit of receiving evidence from the applicant and from several witnesses who gave evidence in support of her claim, as well as submissions from her representative, Mr Nigel Dobbie, whose helpful assistance to the Tribunal in all the circumstances of this case is here noted for the record.

[3] Case 1903014 of 14 March 2022 (Member Goetz).

[4] Case 1903014 of 14 March 2022 (Member Goetz) at [12].

THE FACTS

[6]    The applicant is an Iranian woman who is [Age] years of age.

[7]    On 20 November 2011, the applicant was granted a student visa.[5]

[5] Protection Visa Decision Record of 01 February 2019 at page 1.

[8]    [In] January 2012, the applicant arrived in Australia.[6]

[6] Protection Visa Decision Record of 01 February 2019 at page 1.

[9]    Between 2012 and 2017, the applicant would return to Iran and arrive back in Australia on several occasions.[7]

[7] Protection Visa Decision Record of 01 February 2019 at page 1.

[10]     In the period, 2012 to 2017, the applicant was studying at [University] as part of a [Qualification] program.

[11]     In 2015, the applicant commenced [doing Job task 1] in [a Workplace 1] on Saturdays in [Suburb 1] in Sydney’s west.[8]  The applicant also worked at [a Workplace 2] at [Suburb 1] in this time.[9]

[8] Applicant’s Statutory Declaration of 05 May 2017 at paragraph 11.

[9] Evidence especially of [Ms A], given on 08 March 2024.

[12]     In the period 2015 to 2018, the applicant volunteered as a lay assistant at [Organisation] in [Suburb 2] in Sydney[10] where she helped to [do Job taks 3], particularly of Iranian backgrounds.[11]

[10] Applicant’s Statutory Declaration of 05 May 2017 at paragraphs 18, 19, and 21.

[11] [Organisation] Letter dated 22 November 2023.

[13]     In December 2016, on arriving in Tehran in Iran from Australia, the applicant says she had he was stopped by Iranian security and she had to explain her activities in Australia. She said that she was asked by the Iranian security officers to explain why she had been sent anti-regime articles and propaganda via Facebook. The applicant says that she was sent these articles without her solicitation. She said she had to explain her doings in Australia and that these questions led to follow up by the Iranian authorities. The applicant says she worried that the Iranian authorities were suspicious that she might be an anti-regime political activist and she was asked to sign an undertaking that she will delete Facebook entries.[12] It may be reasonably assumed that the applicant’s name and details were known to Iranian security authorities after this encounter.

[12] Applicant’s Statutory Declaration made 05 May 2017 at paragraphs 33 to 43.

[14]     In December 2016, the applicant was in Iran and seeing her family.  While there, she was introduced through her good friends to a man, [Mr B] (suitor), who had been considered suitable as a proposer of marriage to her. The evidence of the applicant was that, at this time, she was interested in the suitor as he seemed nice and was from a good family.  During this time in Iran, the applicant met this suitor in the presence of her friends and then her family.  The suitor was the son of a prominent member of the [Official body] and the suitor’s family had interests in [businesses].  The suitor proposed marriage to the applicant, which the applicant says she politely refused on the grounds that she wished to return to Australia and further her studies.[13]  The applicant’s evidence in the hearing was to the effect that, while her family was of a very observant Shia kind, the family also expected her to complete her studies before initiating Islamic processes for marriage.

[13] Protection Visa Decision Record of 01 February 2019 at page 4.

[15]     In April 2017, the applicant’s case was that she was finishing her studies and she was preparing to return to Iran. 

[16]     In April 2017, the applicant said that her family in Iran received threatening messages.[14]  The applicant says that she also received threats, including of an acid attack, from the suitor.[15]

[14] Applicant’s Statutory Declaration made 05 May 2017.

[15] Applicant’s Statutory Declaration made 05 May 2017 at paragraphs 44 to 45.

[17]     On 02 May 2017, the suitor made an unnanounced visit to the applicant’s home.[16]  The suitor followed this up with threatening emails, including threats of violence, that were sent to the applicant and to her family. The witnesses relied on by the applicant corroborated that the applicant had, at this time, confided in them her fears of the suitor and what he might do to her should she return to Iran.[17]

[16] Applicant’s Statutory Declaration made 05 May 2017 at paragraph 50.

[17] Evidence especially of [Ms C], given on 08 March 2024.

[18]     On 05 May 2017, the lodged an application for a protection visa[18] and made a statutory declaration.[19]

[18] Protection Visa Decision Record of 01 February 2019 at page 1.

[19] Applicant’s Statutory Declaration made 05 May 2017.

[19]     On 16 January 2019, the applicant’s representative provided to the Department translated correspondence from April/May 2017, translated by accredited translators, that included emailed threats made to the applicant by the suitor and emails from her brother, [Mr D].[20]

[20] Certified professional translations of these emails and related documentary records are all contained in the Tribunal’s files.

[20]     On 24 January 2019, the applicant was interview by a Delegate of the Minister for Home Affairs (Minister’s Delegate) with her migration agent then present.[21]

[21] Protection Visa Decision Record of 01 February 2019 at page 1.

[21]     On 01 February 2019, the Minister’s Delegate refused the grant of a protection visa to the applicant.[22]  The applicant appealed then this refusal to this Tribunal.

[22] Protection Visa Decision Record of 01 February 2019 at page 14.

[22]     On 16 May 2021, the applicant’s father passed away in Tehran.

[23]     On 14 March 2022, this Tribunal affirmed the decision of the Minister’s Delegate.[23]

[23] Case 1903014 of 14 March 2022 (Member Goetz).

[24]     On 22 December 2022, the Federal Circuit and Family Court of Australia quashed the Tribunal’s decision and remitted the case to the Tribunal for a fresh determination.[24]

[24] Case No SYG560/2022 of 22 December 2022.

[25]     On 08 March 2024, this case came on before me for a fresh hearing in the Tribunal.  The applicant gave evidence as did three witnesses for her case.  Mr Dobbie, the applicant’s representative, also made submissions in support of the applicant’s case.

[26]     In order to spare the applicant any further anxiety, at the conclusion of the hearing on 08 March 2024, I briefly adjourned the hearing, then returned to deliver brief oral reasons, informing the applicant that she would be successful in her appeal and in her case that she was owed protection obligations by Australia.  I indicated then that this more lengthy and formal record of decision would be released at a later date.

[27]     I am unaware of whether my practice – that where it is obvious that an applicant will succeed on the evidence given and arguments made in support of their case then the applicant should be informed of this success at the completion of their hearing – is widespread in this Tribunal but in my opinion it should be.  Where an applicant is from a ‘troubled’ or repressive nation-state, it will often be the case that the prospect of attending a government building – even in a rule of law constitutional monarchy like Australia – for a hearing to determine the lawfulness of their claim for refugee or complementary protection by Australia, will be an, at least, emotionally trying if not traumatic experience.  If the accompanying anxiety can be ended early, then a Tribunal member should not hesitate to avail themselves of their right to inform an applicant that they will be successful, even if the eventual decision to that effect will take some days to finalise.

CRITERIA FOR A PROTECTION VISA

[28] The criteria for a protection visa are set out in s 36 of Migration 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.

[29] 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.

[30]     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).

[31]     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.

[32] 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.

[33]     Any application to this Tribunal, even where an applicant has not attended their hearing,  is a proceeding de novo and not an appeal, strictly speaking, at least not an appeal to any court. The case before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.

[34] In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).  The Federal Court said this of the Tribunal’s task[25]:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.

[25] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

[35]     It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits. In view of what was said in Drake, set out above, it is important to repeat that the Tribunal here takes on the role of determining what was the correct or preferable decision on the whole of the material that has been filed with or presented to this Tribunal in this case.

Mandatory considerations

[36] In accordance with Ministerial Direction No.84, made under s 499 of Migration 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.

THE PROCEEDINGS BEFORE THIS TRIBUNAL

[37]     It is important at the outset of these reasons to explain the nature of this Tribunal and its task in cases such as this one.

[38]     The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for an applicant to make their case. It is for the applicant to advance whatever evidence or argument they wish to advance in support of that case. In these particular cases, an applicant’s contention will be that Australia owes them protection obligations. This Tribunal must then decide whether that claim has been made out.[26]

[26] See Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ

[39] To emphasise the point, per ss. 5AAA and 423A of the Migration Act, it is for an applicant to make their own case in as much detail as possible – and to do so at their first reasonable opportunity.  Otherwise, adverse inferences may be drawn against cases made later and, especially, after significant delay.  I will now discuss these two sections in more detail.

a.section 5AAA of the Migration Act makes clear that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, and critically, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. In this respect, two obligations are particularly relevant: the ongoing requirement under s.104 of the Migration Act for an applicant to ensure their relevant details are correct and up to date, and, also, for them to amend any incorrect information at the first reasonable opportunity.

b.section 423A of the Migration Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence where the applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such a case, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not first raised or the evidence was not first presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence. Applicants, therefore, who do not present all of their claims and evidence to the primary decision-maker must have a reasonable explanation for their not doing so.

While the Tribunal is conducting a ‘de novo’ review, it cannot close its eyes to delay and to ‘recent invention’ of old evidence.  These are less matters of strict rules of evidence than the application of common sense.  This said, there may be good reasons for a failure by an applicant to immediately recall all aspects of an applicant’s experience that may soundly ground a protection claim.  It is crucial to always keep an open mind and to be fair and just in all the circumstances of an applicant’s claim.  Yet, ultimately, it is the applicant’s case to make.

[40]     In this case, I have considered all of the material afresh and made my own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.  While as noted above, the Tribunal is inquisitorial and can seek out the evidence it requires in order to reach a determination, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[27] It is, rather, the responsibility of each applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim: s 5AAA of the Migration Act.

[27] see ABT16 v Minister for Home Affairs [2019] FCA 836 (05 June 2019) at [28] per Perram J.

CONSIDERATION OF CLAIMS AND EVIDENCE

[41]     Noting the above, then, the issue in this case was whether the applicant had made out her claim that Australia owes her protection obligations.

[42]     To reiterate what I have said in other cases: where an applicant makes a claim of a fear of harm, the mere fact that a person claims this fear of harm for a particular reason does not establish either the genuineness of the asserted fear, or that the fear is well-founded, or that it is for the reason claimed. A fear of persecution or harm is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth.

[43]     Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts.

[44]     A decision-maker is not required to make the applicant's case for them. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.[28] As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims.  At the same time, an applicant who is not credible will, almost always, have their case rejected.

[28] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.

Problems with the Reasons of the Minister’s Delegate

[45]     I have read, closely, what the Minister’s Delegate said in her reasons in February 2019[29] and what the Member of this Tribunal said in March 2022[30], in refusing the grant of protection to the applicant. 

[29] Protection Visa Decision Record of 01 February 2019 at page 1.

[30] Case 1903014 of 14 March 2022 (Member Goetz).

[46]     I make no criticism of the Member as he was essentially left to do a document review given the applicant’s ill-health.[31]

[31] Case 1903014 of 14 March 2022 (Member Goetz).

[47]     However, there are significant problems with what the Minister’s Delegate found in relation to the applicant, in light of all the evidence in this case, including the evidence before me at the hearings of this case.   In particular, I have reached views opposite to the Minister’s Delegate on these critical questions:

¾Delay: the issue of delay by the applicant in making her claim was raised by the Minister’s Delegate.[32]  While delay may cast doubt on any applicant’s claim, their delay is in and of itself not fatal and this alleged deliquency may be satisfcatorily repelled, in part or in full, by an applicant.  It may well be the case that an applicant will only lodge a claim for protection when she or he feels they need to do so, such as when another visa runs out or some other occurrence arises that makes clear an applicant’s vulnerability. True, the applicant had resided in Australia on student visas since 2012 and only made her protection claim in 2017.[33] But, if there is persuasive evidence before the Tribunal that the applicant was, until early 2017, an always pious Muslim student who intended to return to Iran, then, the question of alleged delay is answered best by, ‘so what?’ While delay may seem harmful to an applicant’s credit, this does not of itself cause the refusal of a protection claim where there is evidence that an applicant’s decision to seek protection arose from true (if admittedly later) facts that would have always fairly grounded a protection claim. This is especially so where an applicant, if returned to their country of origin or to another receiving country, would face real risks of suffering significant harm, whether at the hands of a vindictive suitor or at the hands of a state security apparatus. I am inclined on my own fresh review of this case (and all its documentation) to give the applicant’s alleged delay no weight (at all) in my determination of the applicants’ case.

¾Applicant’s volunteer work with [Organisation]: the evidence from [Organisation][34] (via its senior [Occupation]) is that the applicant did significant and consistent volunteer work with [Organisation], over several years, particularly with Iranian applicants for protection. To the degree the words written by the Minister’s Delegate can be made sense of, there appears to be a finding adverse to the applicant that is to the effect that, because she kept up her activities with [Organisation], and helped Iranian [people], then she cannot really fear that she will be the subject of retribution or suffer harms imposed by the Iranian regime.[35] On this ‘logic’, if a protection claim was to have been made by the martyred Swedish diplomat Raoul Wallenberg, it, too, would fail as Wallenberg could not really have feared retribution by the Nazi or Soviet regimes that were brutalising central Europe because Wallenberg had kept on issuing protective passports and letters to enable persecuted Jews to escape central Europe.[36] This finding against the applicant makes no sense to me and, to the degree the Minister’s Delegate relied on this altogether senseless chain of unreasoning, it forms only a basis for my giving the benefit of the doubt to the applicant, had I otherwise doubted the merits of her claim.

[32] Protection Visa Decision Record of 01 February 2019 at pages 6 and 11.

[33] Protection Visa Decision Record of 01 February 2019 at page 8.

[34] [Organisation] dated 22 November 2023.

[35] Protection Visa Decision Record of 01 February 2019 at page 10.

[36] See, for example, Ingrid Carlberg, Raoul Wallenberg: The Heroic Life and Mysterious Disappearance of the Man Who Saved Thousands of Hungarian Jews from the Holocaust (2016).

Evidence in support of the applicant’s case

[48]     I found the applicant’s evidence to be honestly given and forthright. In what was an unusually long hearing, the applicant answered thorough questioning of her biography without embellishment and without attempts to improve her case.  I found the applicant to be doing her best to answer my questions and to explain her narrative of her claims and their history – again, under intensive questioning – and when she did this, she accurately reflected what she had already represented to the Department and to this Tribunal.  I did not see inconsistencies nor ‘renovations’. I did not see contradictions or a lack of honest recollection. I found her candid and open, if somewhat hurt by her experiences on her last visit to Iran, and, especially, with the traumas associated with the suitor, especially given the subsequent untimely passing of her late father.  The applicant’s explanation of her dealings with her former suitor, in the circumstances of her family, made sense, particularly in the context of observant Shia Muslim families and the prevailing cultural norms of Iranian society, particularly since the 1979 Islamic/Khomeini Revolution.  Above all, the substantial documentary evidence filed by the applicant was borne out by her evidence to the Tribunal, and by the witnesses evidence. 

[49]     The corroborating evidence of the witnesses in support of the applicant’s claims was also of great help in the resolution of this case. While evidence in these proceedings is not as strict as in a court, and the three witnesses[37] were longterm friends of the applicant, each of the three witnesses that were called by the applicant did, under questioning, support key aspects of the applicant’s evidence and her overall case, in particular:

[37] [Ms D], [Ms C], [Ms A]

¾that the applicant came to Australia in 2012 as a religious Muslim who was always intending to return to Iran as she loved her family and did not want to be apart from them;

¾that the applicant was an observant Muslim who wore a hijab and would not, for example, attend a birthday party as alcohol would be served, but she did bake a cake for her friend.  The applicant’s wearing of a hijab had ostracised her in her Iranian expatriate friendship group and even led to suspicions among some that the applicant was a supporter of the Islamic regime and perhaps even a spy;

¾that the applicant was a very committed volunteer in [Community sector] work, including with [Organisation].  Also that the applicant, as someone working at [Organisation], even in a volunteer capacity, was likely to come to the attention of the Iranian regime’s operatives in Australia, and did face some risks should she return again to Iran;

¾that the threats made to the applicant by her former suitor were contemporaneously discussed, in traumatic terms, by the applicant with these witnesses;

¾that the applicant felt threated by the suitor and his family, and his connections, and that the applicant’s fears were always and contemporaneously held;

¾that members of the Iranian diaspora in Australia are very concerned by Iranian regime operatives in their community;

¾that the applicant is politically active in the Iranian-Australian community, particularly after the death Mahsa Amini, which led to the applicant removing her hijab in protest;

¾that, above all, the applicant was, yes, a graduate of various degree and diploma programs but, more importantly, she was hard-working, diligent, and, above all else, an honest, kind, and loyal friend.

[50]     Overall, on balance, this case – and its hearing – has revealed very different aspects of the applicant to me than I think was the case before the Minister’s Delegate in 2019 and this Tribunal in 2022. This is especially so as I had the benefit of an extensive hearing where the applicant appeared as did witnesses testifying in their support of her claim. The only sensible course, given the sheer weight of the evidence, on my fresh examination of this case, is to grant relief to the applicant as a person to whom Australia owes protection obligations.  It would be perverse, indeed, to reach any other conclusion given the weight of the evidence that was before the Tribunal in this case.

FINDINGS

[51] For the reasons given above, I find and I am well satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

DECISION

[52] The Tribunal sets aside the decision of the Department and remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 05 April 2024 at 5:47pm

Graham Alfred Frederick Connolly

Senior Member

Administrative Appeals Tribunal

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.

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36       Protection visas – criteria provided for by this Act

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(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.

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