2303161 (Refugee)

[2023] AATA 3088

2303161 (Refugee) [2023] AATA 3088 (25 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Clare Hughes (Solicitor)

CASE NUMBER:  2303161

COUNTRY OF REFERENCE:                Iran

MEMBER:Senior Member G.A.F. Connolly

DATE:25 August 2023

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)(a) of the Migration Act.

Statement made on 25 August 2023 at 2:24pm

CATCHWORDS
REFUGEE – protection visa – Iran – particular social group – homosexual Iranian male – physically and sexually assaulted while in custody – religion – Christian convert – credibility assessment – consistent claims – mental health condition – decision under review remitted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 05 July 2018 by a delegate of the Minister for Home Affairs (Minister’s Delegate) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).[1]

   [1] see Protection Visa Assessment [number], dated 5 July 2018.

2. The history of the applicant’s case is long and convoluted. For the sake of clarity, I have included in this decision what I consider to be the most relevant events for the determination of the applicant’s case.

3. The male applicant is a citizen of Iran and is [age] years old. The applicant’s father served in the Iranian [armed forces]. The applicant’s mother, who is a very religious woman, was in the Basij (the Basij – which means ‘the mobilisation’ – is an organisation best summarised as a reserve or militia force of Iran’s Islamic Revolutionary Guard Corps). The applicant still speaks with his father but only when his mother is not around.[2]  The evidence of the applicant is that his mother beat him when he was growing up.[3]  The applicant also states that he was sexually abused by his brother when he was a child.[4]

   [2] Applicant’s Statement of 04 June 2021 at paragraphs 5 -7.

   [3] Applicant’s Statement of 04 June 2021 at paragraph 24..

   [4] Applicant’s Statement of 04 June 2021 at paragraph 24..

4. In 2012, the applicant was arrested by the Iranian state.[5] The reasons for his arrest were his criticism of the Iranian “government and Islam”.[6]  The applicant admits that he used to drink and swear at government officials. The applicant was held in detention, including in the [named] Prison in Tehran. There the applicant says that, while he was held in Iranian state custody, he was interrogated, beaten, and tortured, as well as physically and sexually assaulted.[7]

   [5] Applicant’s Statutory Declaration of 13 September 2017 at paragraphs 6-7.

   [6] Applicant’s Statement of 04 June 2021 at paragraphs 62-67.

   [7] Applicant’s Statement of 04 June 2021 at paragraphs 62.

5. [In] May 2013, the applicant arrived in Australia

6. On 12 April 2017, the applicant’s bridging visa was cancelled.[8] The applicant sought review of this decision in the Tribunal.[9]

   [8] Dept file number [number].

   [9] AAT case number [number].

7. [In] April 2017, the Tribunal found it did not have jurisdiction because the application for review was made out of time. There is no record of judicial review of this decision.[10]

   [10] AAT case number [number].

8. On 15 September 2017 the applicant applied for a Safe Haven Enterprise visa (Subclass 790) (SHEV).[11]

   [11] This application was given Department file number [number].

9. On 15 September 2017, the Centrecare Migrant Services, acting on behalf of the applicant, wrote to the then Department of Immigration and Border Protection, informing that Department that the applicant was unable to recall many dates.[12]

   [12] Centrecare (WA) letter dated [in] September 2017.

10. On 8 March 2018, the applicant was notified of the refusal of the SHEV application.

11. Between 2028 to 2020 there was a series of matters to do with resolving the applicant’s status that ended in various jurisdictional dead-ends and which are irrelevant to this protection claim.

12. On 16 June 2020, the applicant applied for a Temporary Protection visa (Subclass 785) (TPV).[13]

    [13] This was given Department file number [number].

13. On 29 July 2020, the delegate refused the applicant’s TPV application.[14]

    [14] Protection Visa Decision Record of 29 July 2020.

14. On 17 September 2021, the Tribunal remitted the applicant’s case to the Department for reconsideration with a direction that the applicant met s 36(2)(a).

15. On 06 March 2023,  the applicant again sought review of the SHEV decision which is the current Tribunal case 2303161.

16. On 02 June 2023, the applicant appeared before this Tribunal on to give evidence and present arguments in support of his claim for protection.  The applicant was represented by Ms  Clare Hughes, solicitor, who made helpful submissions and provided the Tribunal with considerable assistance. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi and English languages. At the conclusion of the Tribunal hearing, Ms Hughes was given further time to prepare and file any further submissions and evidence in support of the applicant’s claim.

17. On 19 June 2023, the applicant was informed his TPV application was invalid due to the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63.[15]

    [15] Applicant’s Submissions of 18 July 2023 at paragraph 18.

18. On 18 July 2023, the applicant’s representative filed a comprehensive submission in support of the applicant’s case.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the 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.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

3. 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.

4. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2. The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not an appeal to any court. The matter 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.

3. 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[16]:

   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.

   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.

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

4. In view of what was said in Drake, set out above, it is important to reiterate, if not 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Applicant’s Claims

1. The question before the Tribunal is whether an applicant has made her or his case that s/he is owed protection obligations by Australia.

2. In this case, the applicant has advanced several grounds for why he has a well-founded fear of persecution if he returns to Iran or why it is a foreseeable consequence of his being removed from Australia that he will suffer significant harm, which are[17]:

   [17] Applicant’s Submissions dated 04 June 2021 at paragraph 8. See also Applicant’s Submissions of 18 July 2023 at paragraph 40-46.

   a.Membership of a particular social group:

   i.Homosexual Iranian male[18];

   [18] Applicant’s Statement of 04 June 2021 at paragraphs 54-61.

   ii.a consumer of alcohol and drugs[19];

   [19] Applicant’s Statement of 04 June 2021 at paragraphs 26-28.

   iii.Person with a mental health issue[20]; and

   iv.Returnee from a Western country[21];

   b.His criticisms of the Iranian regime:

   i.His criticisms of Iranian leaders[22];

   ii.His un-Islamic consumption of alcohol and drugs[23]; and

   iii.His non-adherence to Islam[24].

   c.His conversion to Christianity[25] by which he will be persecuted on the basis of his religion.        

   [20] Applicant’s Statement of 04 June 2021 at paragraphs 15-24.

   [21] Applicant’s Statement of 04 June 2021 at paragraph 70.

   [22] Applicant’s Statement of 04 June 2021 at paragraphs 62-69.

   [23] Applicant’s Statement of 04 June 2021 at paragraphs 26-28.

   [24] Applicant’s Statement of 04 June 2021 at paragraph 30.

   [25] Applicant’s Statement of 04 June 2021 at paragraphs 30-53.

3. For reasons that follow, the applicant has succeeded in relation to making good his case that Australia owes him protection on the grounds that he is a gay Iranian male and Christian convert who has a well-founded fear of persecution if he returns to Iran, or, for whom it is a foreseeable consequence of his being removed from Australia that he will suffer significant harm.  That the applicant’s other grounds advanced have not been explored in this decision does not, at all, mean these grounds lack merit. 

   Iran: Persecution of Homosexuals

4. It is a notorious fact that Iran is a hostile jurisdiction for persons who are, like the applicant, gay (or, were the applicant a woman, a lesbian).  This much hardly needs to be said in view of the fact that Iran persecutes homosexuals, sometimes, including, imposing the death penalty for homosexual acts.  As the US State Department has noted of Iranian law and practice in relation to homosexuals[26]:

   The law criminalizes consensual same-sex sexual activity, which is punishable by death, flogging, or a lesser punishment. The law does not distinguish between consensual and non-consensual same-sex intercourse, and NGOs reported this lack of clarity led to both the survivor and the perpetrator being held criminally liable under the law in cases of assault …

   Those accused of “sodomy” often faced summary trials, and evidentiary standards were not always met. The Iranian Lesbian and Transgender Network noted that individuals arrested under such conditions were traditionally subjected to forced anal examinations – which the United Nations and World Health Organization stated may constitute torture – and other degrading treatment and sexual insults.

   [26] US Department of State, Country Reports on Human Rights Practices for 2021 – Iran, 12 April 2022, Sec.7D, page 65.

5. The most recent DFAT report on Iran noted[27]:

   The Penal Code criminalises all sexual relations outside of traditional marriage, including heterosexual relations. Chapter 2 of the Penal Code explicitly criminalises same-sex relations, including where consensual in nature. Punishments for male homosexual acts are more severe than those given to women. Whereas a man can be executed on the first conviction in cases involving penetration, a woman can only be sentenced to death on her fourth conviction. Article 234 of the Penal Code distinguishes between the ‘active’ and ‘passive’ parties in male-on-male sexual acts involving penetration (sodomy). Whereas it allows for the execution of the passive partner in all cases, the active partner may only be executed if he is married, if he rapes the passive partner or if he is a non-Muslim who has engaged in penetrative acts with a passive Muslim partner. Article 237 states that non-penetrative homosexual acts such as kissing or ‘touching as a result of lust’ are punishable by flogging, applicable to both men and women, while Articles 238 and 239 specifically define and prohibit sexual acts between women,  stipulating flogging as punishment. Same-sex conduct not involving sexual organs – like ‘passionate kissing’ – also attracts flogging as punishment. There is no distinction between the active and passive parties or between Muslims and non-Muslims in cases involving sexual acts between women.

   …

   The prevailing view among Iranian healthcare professionals is that homosexuality is a psycho-sexual illness. Official ‘treatment’ for gay men and women includes prescription medications (such as Valium) and gender reassignment surgery (GRS). International observers report that private and semi-governmental psychological and psychiatric clinics offer ‘corrective treatment’ for LGBTI persons. These clinics allegedly use electric shock therapy on the hands and genitals of LGBTI persons, prescription of psychoactive medication, hypnosis and coercive masturbation to pictures of the opposite sex. One such clinic, The Anonymous Sex Addicts Association of Iran, reportedly has branches in 18 provinces. In March 2016, the UN Committee on the Rights of the Child expressed concern at reports that children identifying as LGBTI had been subjected to electric shocks and the administration of hormones and psychoactive medications as forms of cure. Men whose homosexuality or transgenderism has been established (through an intrusive medical examination) are exempted from military service and given the designation ‘mentally ill’ on their military cards (see Military Objectors), which can lead to later difficulties when seeking employment.

   [27] DFAT, Country Information Report: Iran (14 April 2020) at [3.147] and [3.150].

6. The reporting of the dangerous hostility of the Iranian state to a homosexual in the applicant’s position, including causing death, is consistent. There is no contrary perspective that can be found, despite extensive research of the issue. Same-sex sexual activity is illegal in Iran.[28] The law does not distinguish between consensual and non-consensual same-sex intercourse.[29] There is no possibility for an Iranian homosexual to seek any protection or assistance from the Iranian state as this would amount to an obvious admission by him that left leaves him open to arrest by police and liable to further prosecution.[30] If a homosexual is convicted of a relevant offence, then the array of punishments under Iran’s penal code for same-sex sexual activity include 100 lashes and/or the death penalty, depending on the nature of the sexual activity, with punishments for homosexuals more severe than those imposed upon lesbians.[31] Homosexuals who are accused of engaging in same-sex activities will often face a trial that lacks basic protections for an accused, especially in respect of the evidentiary standard for proof of the alleged crimes committed.[32]

   Forced Sex Reassignment Surgery

   [28] 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, pp.311-312; 'Freedom in the World 2023 - Iran', Freedom House, 9 March 2023,; 'Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec.7D, p.69; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.52,

   [29] 'Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec.7D, p.69,

   [30] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.54.

   [31] Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec.7D, pages 69-70;  DFAT ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, pages 52-54; ‘Iran: Types of criminalisation’, Human Dignity Trust, undated, accessed 26 March 2020.

   [32] US Department of State, Country Reports on Human Rights Practices for 2021 – Iran, 12 April 2022, Sec.7D, pages 69-70.

7. It is important to note that, in Iran, a homosexual is liable to undergo forced gender reassignment surgery if she or he wishes to avoid the state-imposed punishments discussed above.[33]  The US State Department noted this in relation to Iran’s surgery policies[34]:

   Some clerics believe that LGBTQI+ persons were trapped in a body of the wrong sex, and NGOs reported that authorities sometimes pressured LGBTQI+ persons to undergo gender reassignment surgery. Reports indicated these procedures disregarded psychological and physical health and that some persons recommended for surgery did not identify as transgender but were forced to comply to avoid punishment for their LGBTQI+ identity.

   [33] 'Country Reports on Human Rights Practices for 2021 - Iran', US Department of State, 12 April 2022, p.71; 'New Report Reveals the Torment of Iran’s LGBTQ Community', IranWire, 17 September 2020, ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.55,

   [34] US Department of State, Country Reports on Human Rights Practices for 2022 – Iran, 12 April 2022, page 67.

1. The US National Institute of Health has said this about the role of gender reassignment surgery in Iran as a way of avoiding the risk of execution by the Iranian state for homosexual acts[35]:

   Although the growth rate of gender reassignment in Iran does not necessarily indicate positive progress towards LGBTQ rights, it seems that SRS, despite aspects of threatening and responding to social demands, has been able to promote transgender health. Becoming a new version of yourself that is loved by the person and is considered a rebirth, liberation from the physical prison that does not belong to him, access to basic rights, the possibility of changing the name, obtaining a birth certificate and a driving license certificate based on the new gender, choosing clothes and finally eliminating the charge of homosexuality and the risk of execution (punishment for sodomy) is only part of the benefits of accompanying religious rule for transgender people. In Iran, the Imam Committee provides interest-free loans to some people eligible for gender reassignment surgery, which is in line with the recommendations of the WHO.

   [35]

2. Clearly, then, a man, like the applicant, who is a homosexual, if he is forced to return to Iran, risks having to evade an environment that is replete with already existing and government-enforced harms – potentially lethal harms - to someone in his position, or someone who shares his sexual orientation.

3. Moreover, there is no evidence that there is any place in Iran to which the applicant could return where he would not risk the very high likelihood of persecution by the Iranian state (and its apparatus) on grounds of his homosexuality. There is no ‘safe haven’ or locality in Iran where the applicant would not be at grave risk of suffering harm on the grounds of his being a gay man.

   Iran: Persecution of Christians

4. In Iran, the historic and recognised Christian groups, such as the Armenians and Assyrians, can practice freely as Christians, subject to some caveats, such as not proselytising.[36] Obviously, Iran views Christians and churches that predate the 1979 revolution differently from newer churches and, especially, house churches of a new Protestant and missionary nature.[37]  

   [36] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 30.

   [37] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 30.

5. All Christians and churches must be registered with the Iranian state’s authorities and only recognised Christians are permitted to attend church.[38] DFAT assesses that the recognised Christians (who do not engage in proselytising) face a low risk of official discrimination, except for their exclusion from senior government, military, intelligence and judicial positions. [39] In general, recognised Christians are tolerated and permitted to practice their faith, unless they engage in activities perceived to undermine the Islamic Republic[40] such as hosting converts from Islam or holding services in Persian.[41]

   [38] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 30.

   [39] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 30.

   [40] What it's like to be a Christian in Iran’, Deutsche Welle (German), 25 January 2016, CX6A26A6E532; ‘The pope is coming to the Middle East. But Christians are heading for the exits’, Los Angeles Times (United States), 27 April 2017,

   [41] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 30.

6. The government prohibits conversion from Islam to Christianity and converts to Christianity are seen as a threat to the legitimacy and stability of the Iranian regime.[42] Converts to Christianity face the risk of arrest, detention, and prosecution.[43]

   [42] US State Department, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022.

   [43] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 32.

7. The movement of unregistered ‘house church’ Christians of evangelical and newer Protestant denominations, face suspicion and persecutions, and being deemed in local media as ‘illegal networks’ and ‘Zionist propaganda institutions’[44] Homes of converts and house churches are sometimes raided, with physical and digital records confiscated.[45] Christian converts face arrest and detention if their conversion is revealed.[46] The larger house churches that engage in proselytising and have connections to broader house church networks are more likely to face arrest and prosecution.[47]

   [44] US State Department, ‘2021 Report on International Religious Freedom: Iran’, 2 June 2022, page 32.

   [45]

   [46] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, pages 33-34.

   [47] DFAT, ‘Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, page 35.

   Iran: Torture and Cruel, Inhuman, or Degrading, Treatment and Punishment

8. In Iran, the use of torture by the government security apparatus is widespread, systemic and committed with impunity.[48] Deaths in custody in Iran occur as a result of torture.[49] Confessions obtained through torture are broadcast on state television and then form the basis of criminal convictions.[50] The Iranian regime’s range of torture methods include (and this is not an exhaustive list) threats of execution or rape, sleep deprivation, waterboarding, forced ingestion of chemical substances, deliberate deprivation of medical care, burnings, severe and repeated beatings, sexual torture, stress positions, electric shock.[51] Those suspected or found guilty of national security related offences (i.e. political prisoners) are particularly vulnerable to torture.[52] Torture is used to obtain forced confessions, particularly in national security related cases,[53] including in death penalty cases.[54] Iranian courts will frequently reject allegations of torture.[55] Authorities have failed to meaningfully investigate allegations of torture against detainees.[56]

   [48]  'Situation of human rights in the Islamic Republic of Iran', United Nations Human Rights Council, 07 February 2023, p.11; 'Iran Human Rights Monitor Annual Report 2020', Iran Human Rights Monitor, 28 January 2021, p.8; 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.198.

   [49] 'Situation of human rights in the Islamic Republic of Iran', United Nations High Commissioner for Human Rights (UNHCHR), 16 June 2022, p.6.

   [50] 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, p.309. 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.198.

   [51] Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec 1C; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, pp.61-62;

   [52] ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.62, 20200414083132; 'Trampling humanity: Mass arrests, disappearances and torture since Iran's November 2019 protests', Amnesty International, 2 September 2020, pp.34-45; ‘2019 Iran Human Rights Annual Report’, Iran Human Rights Monitor, p.10, 6 January 2020,

   [53] 'Situation of human rights in the Islamic Republic of Iran', United Nations Human Rights Council, 07 February 2023, p.11,; 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.198; 'Iran Human Rights Monitor Annual Report 2020', Iran Human Rights Monitor, 28 January 2021, p.8; 'Trampling humanity: Mass arrests, disappearances and torture since Iran's November 2019 protests', Amnesty International, 2 September 2020, p.34; ‘2019 Iran Human Rights Annual Report’, Iran Human Rights Monitor, p.5, 6 January 2020; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.62.

   [54] 'Death sentences and executions 2021', Amnesty International, 24 May 2022, p.14; 'Situation of human rights in the Islamic Republic of Iran', United Nations Human Rights Council, 07 February 2023

   [55] ‘Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, p.2; ‘Turning a blind eye: Why the international community must no longer ignore torture in Iran’, Freedom from Torture (United Kingdom), December 2017, p. 32.

   [56] 'Situation of human rights in the Islamic Republic of Iran', United Nations High Commissioner for Human Rights (UNHCHR), 16 June 2022, p.4; 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, p.309.

9. Prison conditions in Iran are extremely poor, and medical treatment is often denied to prisoners. Iran breaches its international obligations on the right to life and the health of prisoners.[57] Prisons in Iran are overcrowded and can lack reasonable facilities.[58] Prison conditions are often harsh, with prisoners being provided with inadequate food and exposed to extreme temperature and unsanitary conditions.[59] Key issues include torture, overcrowding, poor hygiene, lack of food and water, denial of access to medical care, solitary confinement and medical treatment as a condition upon confession.[60] In some cases, prisoners are transferred to informal buildings without any regulation or monitoring.[61] Children detainees are often held alongside adults and there are reports of children being subject to the same patterns of torture as adult detainees.[62] Iranian prisons can only provide basic medical facilities.[63] Prison infirmaries have outdated and inadequate supplies of medicine and prison medical staff lack sufficient training or are unhelpful to prisoners, particularly political prisoners.[64] Iran’s prisoners were and are ill equipped to respond to the COVID-19 pandemic and many prisons have experienced outbreaks.[65] Prisoners lack adequate access to testing kits, medications, disinfecting substances and hygiene products such as alcohol, gloves and masks.[66] Prisoners report that due to overcrowding, the quarantine and social distancing requirements required by the recent Pandemic could not be practiced.[67] Prison authorities often refuse to provide medical treatment for pre-existing conditions, injuries caused by prison authorities or illnesses caused by unsanitary conditions in prisons.[68]

   [57] 'Iran Human Rights Monitor Annual Report 2020', Iran Human Rights Monitor, 28 January 2021, p.10.

   [58] 'Situation of human rights in the Islamic Republic of Iran', United Nations Human Rights Council, 07 February 2023; 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.198; Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec 1C, p.13; 'Iran Human Rights Monitor Annual Report 2020', Iran Human Rights Monitor, 28 January 2021, p.14; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.68.

   [59] ''Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.198; Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec 1C; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.68; 'Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, pp.12-18.

   [60] 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.198; Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec 1C; 'Iran Human Rights Monitor Annual Report 2020', Iran Human Rights Monitor, 28 January 2021, p.11; ‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.68; 'Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, pp.12-18.

   [61] 'Situation of human rights in the Islamic Republic of Iran', United Nations Human Rights Council, 07 February 2023, p.9.

   [62] ‘Iran: Child detainees subjected to flogging, electric shocks and sexual violence in brutal protest crackdown’, Amnesty International, 16 March 2023.

   [63]‘DFAT Country Information Report – Iran’, Department of Foreign Affairs and Trade, 14 April 2020, p.68; ‘Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, p.18.

   [64] 'Situation of human rights in the Islamic Republic of Iran: Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran', United Nations General Assembly, 28 January 2020, p.18.

   [65] 'Rising COVID Infections, Unhygienic Conditions Raise Fears of More Deaths in Iranian Prisons', Center for Human Rights in Iran (United States), 22 July 2021.

   [66] ‘Iran Human Rights Monitor Annual Report 2020 – Covid-19 Outbreak in Prisons’, Iran Human Rights Monitor, 6 January 2021; 'Iran Human Rights Monitor Annual Report 2020', Iran Human Rights Monitor, 28 January 2021, p.14; 'Coronavirus outbreak in Iranian prisons', Human Rights Activists News Agency, 4 March 2020; 'Grave Concerns for Prisoners in Iran Amid Coronavirus Outbreak', Center for Human Rights in Iran (United States), 28 February 2020; ‘Iran releases 85,000 prisoners to curb coronavirus spread, but Australian academic remains behind bars’, ABC News, 20 March 2020.

   [67] ‘Coronavirus Crisis in Iranian Prisons’, Shaheh Alavi, IranWire, 28 February 2020.

   [68] ‘Country Reports on Human Rights Practices for 2021 - Iran, US Department of State, 12 April 2022, Sec 1C.

Assessing an applicant’s case

1. Where an applicant appeals to this Tribunal and makes a claim of a fear of persecution, the mere fact that a person claims this fear of persecution for a particular reason does not establish the genuineness of the asserted fear, or that the fear is well-founded or that it is for the reason claimed.

2. A fear of persecution 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.

3. 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. A decision-maker is not required to make the applicant's case for him. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.[69] 

   [69] 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.

4. In those cases where an applicant has had the opportunity to make a protection claim but has not made it promptly, then the reasons for that delay will need to be explained.

5. In determining whether or not an applicant is owed protection obligations by Australia, the Tribunal will ultimately have to make findings of fact on the claims that she or he has made. The Tribunal’s task may - and, indeed, almost always will – involve an assessment of a particular applicant's credibility.  In assessing an applicant’s credibility, the Tribunal is aware of the importance of being, appropriately, sensitive to the difficulties faced by an applicant for protection. The Tribunal is aware of the pressures on applicants and that not every case can be prepared to a state anywhere close to approaching perfection. 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.

6. In a similar way, the Tribunal’s rejection of an applicant’s claims and allegations does not require the Tribunal to posit any rebutting evidence. This is so especially where those claims conflict with the independent evidence of the reality of an applicant’s country of nationality.[70]  If the independent evidence of the reality of a country of nationality is that it is a safe place for a person in the applicant’s position to return to, then it is for the applicant to demonstrate, by argument and by evidence, why, in their particular circumstances, their case is one that does engage Australia’s protection obligations.

   [70] Randhawa (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai; (1994) 34 ALD 347 at 348 per Heerey J;  Kopalapillai (1998) 86 FCR 547.

   The Applicant’s Claims and Evidence

7. The applicant is, as has been set out above, a gay man and, also, a Christian convert.[71]

   [71] Applicant’s Submissions dated 04 June 2021 at paragraph 15.

8. The applicant’s explanation of his circumstances giving rise to a fear of persecution or suffering harm owing to his membership of a particular social group (homosexual men) and his religion, has been consistent:

   a.he has identified as a homosexual, including in his submissions[72] to reviews of his case by the Department[73], and in this hearing before this Tribunal[74];

   b.he has consistently maintained that he was a prisoner in the [named][75] Prison[76] in Tehran (a prison notorious in its own right for its use by the Iranian state apparatus as a brutal and sometimes secret place of detention[77]). The applicant has consistently maintained that while he was held in the Iranian custody he was physically assaulted and sexually assaulted[78];

   c.he has consistently[79] maintained[80] that he was a convert to Christianity and a member of the Presbyterian Church. The applicant asked to be baptised as a Christian in December 2013[81] and was baptised on Christmas Day, 2013. The applicant helped out in this church for several years, even helping to, voluntarily, repair church furnishings and paint church windows.[82] He has evidence to prove his religious faith. The applicant is a consistent promoter of Christian ideas online.[83];

   [72] See the “Natural Justice Submission for [the Applicant]”, Client ID: [number], File Number: [number], dated 22 July 2020.

   [73] See Applicant’s Protection Visa Decision Record dated 29 July 2020 at page 22.

   [74] See the Applicant’s submissions dated 18 July 2023 at pages 6 to 9.

   [75] See Applicant’s Protection Visa Decision Record dated 06 March 2018 at pages 3-4..

   [76] See the “Natural Justice Submission for [the Applicant]”, Client ID: [number], File Number: [number], dated 22 July 2020.

   [77] [Source redacted].

   [78] Applicant’s Submissions dated 04 June 2021 at paragraph 19.

   [79] See Applicant’s Protection Visa Decision Record dated 06 March 2018 at pages 5 to 7.

   [80] See IAA decision IAA18/04552 of 07 June 2018.

   [81] See letter from [Church 1], dated 30 July 2017.

   [82] See letter from [Church 1], dated 30 July 2017.

   [83] See annexed documents to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, Applicant’s Summary of Treatment, dated 15 May 2023.

9. Accordingly, it is important to note that the applicant has made the same claims for many years now.

10. It was wrong, as the Minister’s Delegate did in refusing the applicant a protection visa, to posit the applicant’s conversion to Christianity and his homosexuality as contradictory, let alone fatal to his application.[84] Further, and to the put the matter bluntly and clearly, the Minister’s Delegate appeared to have expectations of this applicant that were strangely formalistic and, above all, highly unrealistic:

    a.The applicant’s homosexuality: The applicant has put on his quite detailed evidence of his sexual orientation[85], including the history of his sexual orientation before he arrived in Australia.[86] This is in circumstances where the applicant is an Iranian, from a culture where homosexuality is criminalised and to which he may be returned. The openness of the applicant in this respect counts in his favour, particularly, again, as the applicant could provide evidence of his relationships and history[87] as a gay man[88], when, if he was in Iran, these would be admissions that could lead him to suffer severe punishments up to and including death.  It is a strange level of bureaucratic formalism for an Iranian in the applicant’s position to be expected to confess immediately, in a government interview setting, to the full circumstances of his sexual orientation[89] that, in his home country, would see him risking the most gruesome of punishments. It is certainly an unrealistic proposition that this Tribunal cannot entertain, especially, as in the hearing before me, again, it was evidently very hard for the applicant to speak about his sexuality, openly, even in a setting where confidence of his evidence would be maintained.[90] This is especially so in view of the applicant’s long documented mental health issues.[91]

    b.The applicant’s Christian faith: Similarly, the applicant’s evidence that he is a Christian is supported by his former church and its pastor[92], and by the applicant’s practices, such as he can, as a Christian believer.[93] That a Christian may lack ongoing contact with a church, especially in the circumstances of this applicant and the muddled history of his case’s handling, including by the Department, is hardly surprising. Indeed, for a person, in the position of the applicant and given the peculiar oddities in his now very long case, living in and out of detention, it is a Herculean expectation to think he must play the role of regular churchgoer to be believed as a Christian. Such an expectation would, again, certainly be an unrealistic one – and, again, it is one that this Tribunal cannot reasonably share.

    [84] See Applicant’s Protection Visa Decision Record dated 29 July 2020 at page 22.

    [85] See Applicant’s Protection Visa Decision Record dated 29 July 2020 at page 22.

    [86] See Applicant’s Protection Visa Decision Record dated 29 July 2020 at page 21.

    [87] See the “Natural Justice Submission for [the Applicant]”, Client ID: [number], File Number: [number], dated 22 July 2020.

    [88] See Applicant’s Protection Visa Decision Record dated 29 July 2020 at page 22.

    [89] See Applicant’s Protection Visa Decision Record dated 29 July 2020 at page 22.

    [90] Tribunal hearing conducted 02 June 2023.

    [91] See, for example, the Centrecare (WA) letter dated [in] September 2017.

    [92] See letter from [Church 1], dated 30 July 2017.

    [93] Applicant’s Statutory Declaration of 13 September 2017 at paragraphs 12-14.

1. It is difficult to see why or how in the circumstances of the evidence in this case, that was before the Tribunal, that the applicant’s claims in relation to his sexual orientation and his religious faith, were not accepted.

2. It is hard to escape the quite obvious reality that, if only as a gay man in Iran, the applicant’s life, were he to be returned to Iran, would be a perilous one. There is no place or locality in Iran where the applicant could reasonably live and hope to escape persecution.  There is no evidence to suggest that any part of Iran would give the applicant any reduced risk of persecution let alone any ‘safe haven’.

3. Further, the applicant suffers from several debilitating medical conditions.  The report from the applicant’s social worker states[94]:

   [The applicant] has presented to treatment with a range of psychological symptoms that are clinically significant of anxiety, depression and post-traumatic stress disorder (PTSD). He has experienced multiple, compounding experiences of trauma in Iran and Australia that have impacted him significantly, and which have resulted in him suffering from longstanding and debilitating post-traumatic stress symptoms. [The applicant] continues to present as significantly anxious, and has difficulties functioning on a psychological, biological and social level due to his symptoms and trauma. [The applicant] is well-engaged in treatment sessions and continues to be committed to improve his mental health, better his wellbeing and rehabilitate from his experiences of trauma.
   [The applicant] requires ongoing counselling to assist him with addressing his psychological issues and symptoms.

   It may, perhaps, be – and I make this point solely for its illustrative purpose – one thing to return a young man in the prime of his life but another to return a man of [age] who is in the applicant’s mental and physical state. Moreover, where an individual has suffered such significant mental and physical injury as the applicant evidently has, it is beyond cruel to, somehow, expect him to navigate an Iranian society that he has been absent from for the last decade and whose laws and state apparatus have already persecuted him – and will very likely persecute someone in his position, again, particularly as a member of a particular social group (homosexual men).

   [94] NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors, Applicant’s Summary of Treatment, dated 15 May 2023.

4. It is important to note, finally, for the purposes of this application, that there was and is no evidence filed or submitted by the Department in this case before the Tribunal that either directly opposes the applicant or casts doubt on what he maintains is the case.  While it is for an applicant to make her or his case, in this case, it is one where this Tribunal can, with more safety and more certainty, accept an applicant’s evidence.

FINDINGS

1. In this case, two things are clear on the evidence that is before the Tribunal.  Firstly, Iran is an extraordinarily hostile place in which to live as a gay man. Secondly, the applicant is a gay man. The overall weight, consistency, and coherence, of the evidence in the applicant’s case in this Tribunal, weigh, heavily, in his favour, and the acceptance of his protection claims.[95]  

   [95] See Administrative Appeals Tribunal, Guidelines on Assessment of Credibility (July 2015) at [28].

2. It is noteworthy that s 423A of the Migration Act requires that in circumstances where the Tribunal is not satisfied with an applicant’s explanation then the Tribunal is to draw an inference unfavourable to the credibility of the claim.

3. In this case, I am minded to only draw inferences that are favourable to this applicant, as his evidence and his argument has been the same for years now. The applicant has, in particular, not attempted to “improve upon”, embellish, or contradict his earlier evidence. The applicant’s evidence is simple and straightforward, as reflects the applicant, himself, that appeared before this Tribunal. The applicant is understandably most fearful of returning to Iran and, for the reasons that he has argued and evidenced, including in the Tribunal hearing, that fear was and is a very well-founded one.

4. The applicant’s case proceeded on a second ground, that he was a Christian convert, and that, being so, he was, also, in danger of suffering, if he was to return to Iran, as other Christian converts have suffered in Iran.  For the same reasons expressed above, his case has been consistent on this claim, the evidence has supported his claim, and he would, also, succeed on this claim, were I in any doubt as to his other grounds of argument.

5. It is also important to note that the applicant’s evidence makes clear he suffers from several medical conditions. His array of medications, follow clinical interventions, to meet his mental health challenges is significant. [96] The applicant also maintains he was assaulted several times in immigration detention.[97]

   [96] Applicant’s Statement of 04 June 2021 at paragraphs 21-23.

   [97] Applicant’s Statement of 04 June 2021 at paragraphs 15-28.

   Final comments regarding this case

6. The applicant’s case was, as I have said, one that he consistently made, supported by his evidence. The applicant’s case was also one that, when he made it in the Tribunal, caused him quite obvious trauma and pain, which should be unsurprising given what happened to him when he lived in Iran.  Understandably, the prospect of his return to Iran, held out the prospect of his, again, suffering gravely at the hands of the Iranian state and its agents.

7. While not usually the practice in this Tribunal, it would be unjust of someone in my position to not note what would be obvious to even the most cursory of lay observer of the various hearings of this applicant’s cases before the Department and this Tribunal: that the applicant is a man in a most vulnerable mental and personal health state and he will need considerable (and compassionate) assistance in whatever lies ahead for him.[98]

   [98] See the Applicant’s Summary of Treatment, dated 15 May 2023.

8. It took far too long for the applicant’s case to be resolved by the various emanations of the Australian Government, particularly given this was a case, as I have found, that was a strong one. This case is now resolved, so far as this Tribunal has the power to review the history of this case and, finally, ‘right the wrong’ that was done to this applicant.

9. I finish by recording the Tribunal’s appreciation for the considerable assistance of the applicant’s solicitor and representative, Ms Claire Hughes, in this case.

CONCLUSION

1. For the reasons given above and based on the whole of the evidence that was before the Tribunal, I am very much satisfied that the applicant is a refugee, and thus the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

1. 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)(a) of the Migration Act..

Statement made on 25 August 2023 at 2:25pm

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.

…

5HMeaning 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.

…

5JMeaning 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.

1. 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.

1. 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:

1. 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;

2. conceal his or her true race, ethnicity, nationality or country of origin;

3. alter his or her political beliefs or conceal his or her true political beliefs;

4. conceal a physical, psychological or intellectual disability;

5. enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

6. alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. 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.

1. 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.

1. 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.

5KMembership 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:

1. the first person has ever experienced; or

2. 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.

5LMembership 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:

1. the characteristic is an innate or immutable characteristic;

2. the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

3. the characteristic distinguishes the group from society; and

(d)the characteristic is not a fear of persecution.

5LAEffective 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:

1. the relevant State; or

2. 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.

1. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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:

1. is mentioned in paragraph (a); and

2. 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:

1. is mentioned in paragraph (aa); and

2. 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.

…

B. Pirnia (etal), “Sex Reassignment Surgery in Iran, Re-Birth or Human Rights Violations against Transgender People?”, Iranian Journal of Public Health, (Nov 2022) 51(11): 2632–2633.
Open Doors, 'Annual Report 2020 - Rights violations against Christians in Iran',
Christian Solidarity Network, 'Violations of the Rights of Christians in Iran - 2018 Annual Report', 18 January 2019, pages 1 to 4 and page 49.

‘Iran – Failing on all Fronts’, Amnesty International, 30 June 2019, p. 7; ‘Turning a blind eye: Why the international community must no longer ignore torture in Iran’, Freedom from Torture (United Kingdom), December 2017, p. 15; 'The Iranian Judiciary: A Complex and Dysfunctional System', Iran Human Rights Documentation Center (United States), 22 September 2016, pp. 50–52; 'Situation of human rights in the Islamic Republic of Iran: Report of the Secretary-General', UN General Assembly, 6 September 2016, p. 12; ‘Recent suicides highlight ongoing Iranian human rights abuses’, The Hill (United States), 5 March 2017.