2438952 (Refugee)
[2025] ARTA 818
•4 February 2025
2438952 (REFUGEE) [2025] ARTA 818 (4 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Michael Kah
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2438952
Tribunal:General Member G Weeks
Date:4 February 2025
Place:Sydney
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 04 February 2025 at 11:16am
CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit and Family Court remittal – political opinion – political activities in Australia – social media activity – religion – conversion to Christianity – particular social group – retuned asylum seeker – apostasy – employment with government-owned companies – detention – physical assault – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 424, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (delegate) on 13 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant is [an age]-year-old man and is a citizen of Iran. He resided in Ghazvin City before coming to Australia.
The applicant arrived in Australia by boat [in] September 2012 and was transferred to Christmas Island. At his arrival interview, he stated that he had flown from Iran to [Country 1] and then to Indonesia in August 2012. After about a month in Jakarta, the applicant stated that he flew to [City 1] where he boarded a boat. In his interview with the delegate, the applicant explained that he had been required to hand over his Iranian passport in order to be allowed onto the boat which would bring him to Australia.
The applicant applied for a protection visa in September 2013 but that application was found to be invalid. The applicant made a second application for a protection visa dated 15 April 2016 (PV application). The Tribunal has been provided with a copy of the PV application.
Procedural history
The applicant attended an interview with the delegate on 22 March 2017. The delegate refused to grant the visa on the basis that she was not satisfied that, if returned to Iran, there was a real chance that the applicant would suffer persecution in the reasonably foreseeable future. The delegate gave her reasons for that decision in a document dated 13 June 2017 (decision record).
The applicant sought review of that decision by the Immigration Assessment Authority (IAA). The IAA affirmed the delegate’s decision on 21 December 2017 (first IAA decision).
The first IAA decision was quashed by the Federal Circuit Court of Australia [in] July 2019. The respondent, the Minister for Home Affairs, conceded that the first IAA decision was affected by jurisdictional error because the IAA had failed to take into account information advanced by the applicant in a submission dated 5 July 2017. The relevant information was that the applicant would be exposed to potential harm if he were required to apply for an Iranian passport to replace the one he had handed over in [City 1]. A writ of mandamus issued to direct the IAA to determine the applicant’s PV application according to law.
On 2 September 2019, the IAA (differently constituted) conducted a hearing with the applicant. The IAA subsequently affirmed the delegate’s decision on 5 September 2019 (second IAA decision).
The applicant sought judicial review of the second IAA decision. On 14 August 2024, the Federal Circuit and Family Court of Australia quashed the second IAA decision.[1] [The Judge] held that the IAA’s rejection of certain evidence gave rise to jurisdictional error. Additionally, his Honour held that the IAA had made jurisdictional errors by failing to consider the applicant’s claim that the Iranian authorities would accuse him of converting to Christianity and by making legally unreasonable credibility findings with regard to evidence given by the applicant and his sister. His Honour issued mandamus to require the IAA to determine the applicant’s PV application according to law.
[1] [Source deleted.]
The IAA was abolished with effect from 14 October 2024. This Tribunal is now required to determine the applicant’s PV application.
The applicant appeared before the Tribunal on 3 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review.
Claims for protection
In submissions dated 24 January 2025 (the pre-hearing submissions), the applicant’s representative set out his claims for protection as follows:
i.Between June 2010 and January 2012, [the applicant] applied for multiple positions within Iranian government-owned companies. During the final interview in January 2012, he was questioned about his opinions on the attack on the British Embassy in Tehran, which took place on 29 November 2011.
ii.After the last interview in January 2012, [the applicant] was arrested and detained by the Basiji. During his detention, he was interrogated and accused of being an apostate. He was subjected to physical abuse, including being hit with fists, slaps and later with a baton, before being released. Similar incidents occurred three more times: within a month of the first arrest; in June 2012; and again [in] July 2012.
iii.Following his release after the fourth detention, [the applicant’s] father arranged for him to leave Iran and travel to Australia for his safety. [In] August 2012, [the applicant] departed Iran via Emam Khomeini Tehran Airport, traveling to [Country 1] and then onward to Jakarta, Indonesia. [In] September 2012, [the applicant] arrived in Australia by boat and was transferred to Christmas Island. [The applicant] was interviewed by the then-Department of Immigration and Border Protection on 8 October 2012 and again on 4 December 2012.
iv.[In] April 2013, [the applicant] was baptised by [Pastor A] at [Church 1], [in Suburb 1], NSW. [The applicant] continues to fear returning to Iran due to his conversion from Shi’a Islam (apostasy), his political opposition to the Iranian regime and his status as a failed asylum seeker. He also fears persecution for his Christianity and political activities in Australia, including his participation in protests in Sydney following the death of Kurdish-Iranian woman Mahsa Amini on 16 September 2022. Since those protests, [the applicant] has been receiving frequent [contact] requests on [social media 1], 20 to 30 requests every two weeks, which he believes are from individuals linked to the Iranian government.
v.[The applicant] acknowledges that he has not previously disclosed his conversion to Christianity to the Department or the [IAA]. He did not initially disclose his baptism because, at the time, he was attending church sporadically, did not strongly identify with the religion and viewed religion as a personal matter. He initially explored Christianity out of curiosity after arriving in Australia and chose not to disclose it during interviews so he stated he had no religion.
vi.[The applicant] has been diagnosed as suffering from anxiety, stress and depression by his treating psychologist, [Psychologist A], who has provided a report also explaining that the errors in the dates of events in the past recalled by [the applicant] in various interviews and application forms are due to his lack of concentration under stress. Currently, [the applicant] is not taking any medications for his condition.
vii.[The applicant’s] sister, [Sister A], was born in Ghazvin, Iran … and is now an Australian permanent resident residing in Sydney. [The applicant] resides with [Sister A] and her husband ... In Iran, [Sister A] faced incidents involving Iranian authorities, which she described in a statement dated 23 July 2019. To avoid further trouble, she stayed at home and complied with the hijab requirement until she moved to Australia over a year and a half ago.
viii.Last year, before [Sister A] relocated to Australia, [the applicant’s] father, who remains in Iran, was approached by two men in civilian clothing who asked for [the applicant’s] Iranian mobile phone number, whether the phone had been sold or used by someone else and asking for [the applicant’s] whereabouts. The phone, which was registered under [the applicant’s] name, had not been sold and was left unused in Iran after his departure in August 2012. The two men informed his father that the phone number had been used unlawfully and the phone number had been blocked. [The applicant] and his father suspect these individuals were undercover plainclothes Basiji attempting to gather information on [the applicant’s] whereabouts for Iranian authorities.
The pre-hearing submissions drew attention to the applicant’s involvement in protests against the Iranian regime since his arrival in Australia.
The pre-hearing submissions also drew attention to an incident in Iran following the applicant’s departure in which the applicant’s sister was stopped on her wedding day for not wearing a hijab in breach of the Iranian dress code.
The pre-hearing submissions contained extensive country information relating to the treatment of Christians and converts to Christianity under Iranian law and the treatment of failed asylum seekers on their return to Iran.
The pre-hearing submissions submitted that the applicant is both a Christian and a convert from Islam. They further submitted that no adverse inference can or should be drawn against the applicant under s 367A of the Act for the reason that he failed to disclose his Christian faith during interviews with the Department and the IAA. They further submitted that the applicant’s conversion to Christianity and protest activities are not “for the purpose of strengthening [his] claim to be a refugee” within the meaning of s 5J(6) of the Act.
Evidence before the Tribunal
The applicant’s representative confirmed at the hearing that the applicant seeks only to rely on the claims set out above and the following documents.
The pre-hearing submissions listed documents previously submitted in support of the applicant’s claims, including:
(a)a signed statement by the applicant dated 5 September 2013 attached to the applicant’s invalid protection visa application;
(b)a signed statement by the applicant dated 31 March 2016 attached to the PV application;
(c)a signed statement by the applicant dated 23 July 2019 attached to submissions to the IAA;
(d)a signed statement by the applicant’s sister [Sister A] dated 23 July 2019 attached to submissions to the IAA;
(e)an SMS message from the [Morality Police] with English translation of same; and
(f)the Marriage Certificate of [Sister A] and her husband, with English translation of same.
The pre-hearing submissions attached further documents, marked as attachments A to S:
A.a statutory declaration made by the applicant on 22 January 2025;
B.a statutory declaration made by [Sister A] sworn on 22 January 2025;
C.a letter of support dated 23 December 2024 from the applicant’s father, [named], with English translation of same;
D.a letter of support dated 5 January 2025 from [Pastor A], Pastor of [Church 1], [Suburb 1] ;
E.a letter of support dated 6 January 2025 with attached background information from [Mr A] of [Community Organisation 1];
F.an undated letter of support from [Mr B];
G.an undated letter of support from [Mr C];
H.an undated letter of support from [Mr D];
I.an undated letter of support from [Mr E], board member of [Church 2];
J.an undated letter of support from [Mr F];
K.an undated letter of support from [Mr G];
L.an undated letter of support from [Mr H]
M.an undated letter of support from [Mr I] and [Ms A];
N.an undated letter of support from [Mr J] and [Person A];
O.an undated letter of support from [Mr K] and [Person B];
P.a letter dated 5 January 2025 from [Psychologist A], the applicant’s psychologist, to [Doctor A], the applicant’s general practitioner;
Q.a certificate dated [in] April 2013 recording the applicant’s baptism at the [Church 1], [Suburb 1];
R.a selection of photographs of the applicant participating in activities at church and other Christian events and handing out Gospel pamphlets; and
S.a selection of screenshots from the applicant’s [social media 2][2] and [social media 1][3] accounts, some of which identify the applicant.
[2] [Details deleted.]
[3] [Details deleted.]
Attachments D and F to M relate to the applicant’s Christian beliefs and practices.
Attachments E, N and O relate to the applicant’s political and protest activities.
During the hearing, the Tribunal received oral evidence from [Sister A], [Pastor A], [Mr B] and [Mr A]. The applicant indicated that the other witnesses who had provided written evidence were available to give oral evidence. They were not required to do so.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 (the refugee criterion).
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).
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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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.
REASONS AND FINDINGS
The central issues in this case are not entirely the same as they were at the time that the applicant first applied for protection. In brief, they are now twofold: whether the applicant has converted to Christianity and would practice that religion if returned to Iran; and whether the applicant’s political opinions, as he has expressed them during his time in Australia, has or would bring him to the adverse attention of the authorities in Iran. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
I find that the applicant is a citizen of Iran and assess the applicant against Iran as both his country of nationality and the receiving country.
Based on the previous hearings and decisions in this case, the pre-hearing submissions and the applicant’s evidence at the hearing, I accept certain of the claims made by the applicant. I accept that he sought employment in Iran with certain government-owned companies between 2010 and 2012. I accept that the applicant was interviewed for several of the positions for which he had applied. I accept that he was detained and interrogated on four occasions as a result of one or more of his responses in those interviews. I accept that he was assaulted during the course of those interrogations.
Conversion to Christianity
The applicant and [Sister A] both gave evidence that their family are nominally Shi’a Muslims but that they, their parents and [a sibling] never practised Islam in Iran. While the children were forced to attend prayers at school and university, they only went through the motions and never prayed at home. I accept that evidence.
The applicant gave evidence that he was “never a Muslim” and I accept that he was never an adherent of Islam. The applicant gave evidence that he was first exposed to Christianity in about December 2012 after he was released from immigration detention. At that time, he met [Mr B] when looking for friends from the same cultural background. The applicant gave evidence that [Mr B] spoke about Christianity and that the applicant started to “investigate” that religion. He did not attend church with [Mr B], although he gave evidence that they did read the Bible together. Rather, the applicant gave evidence that he found [Church 1] independently and attended for the first time in early 2013. I accept that evidence.
[Mr B] gave evidence that, although he saw less of the applicant in the years after they met, he was aware that the applicant was attending church. I accept that evidence.
[Pastor A] gave evidence that he has a record of having first met the applicant early in 2013 and that he and the applicant went through a number of “lessons” before agreeing to be baptised in April 2013. [Pastor A] gave evidence that, in the years following his baptism, the applicant reduced his attendance at [Church 1]. [Pastor A] lost contact with the applicant for some time, which [Pastor A] put down to the applicant suffering from depression and missing his family. I accept that the applicant was baptised in April 2013 following discussions with [Pastor A] about Christianity.
Baptism is a sacrament of the Christian church and usually signifies the initiation of the person baptised into the Christian faith. The applicant was baptised before his invalid application for a protection visa in September 2013, his PV application in April 2016, his interview with the delegate in March 2017, the first IAA decision in December 2017 and the second IAA decision in September 2019. He did not claim at any point in the processes above to have become a Christian.
During the hearing, I put to the applicant that s 367A of the Act requires that I draw an unfavourable inference about the credibility of claims not raised and evidence not presented before the delegate made her decision unless there is a good explanation for why that was not done. I specifically expressed concern that the applicant claimed to have been a practising Christian since about 2013 and to have been baptised in April 2013 but that he did not make those claims before the Minister’s delegate made a decision about his PV application in June 2017. I asked the applicant whether there is a reasonable explanation for why he did not raise claims and present evidence about his Christian beliefs before the delegate’s decision.
The applicant gave evidence that he was engaged in a “process” of finding a meaningful religion and that he was investigating Christianity out of curiosity. He gave evidence that, notwithstanding his baptism, he felt between 2013 and 2017 that he could still “revert”. I take that evidence to mean that the applicant felt that he may not, on reflection, have elected to remain part of the Christian faith rather than that he had any intention of practising Shi’a Islam. The applicant gave evidence that he believes that religion is sacred and did not want to “abuse” his new beliefs at a time when he was still learning about Christianity. The applicant, during the course of his evidence, distinguished “learning” about Christianity from his current role as a “teacher”. He gave evidence that his relationship with Christianity changed when he became a “teacher”, a role which includes leading Bible studies and proselytising to others. Prior to that, he considered that he was “not fully Christian”.
I put to the applicant that he bore a statutory onus to satisfy me that he “engaged in” his religious practices as a Christian “otherwise than for the purpose of strengthening [his] claim to be a refugee”.[4] He replied that, had that been his intention, he would have raised the issue in 2017. I accept that he would have done so; indeed, the logic underlying that response is undeniable. I find that the applicant did not engage in the practice of Christianity for the purpose of strengthening his claim to be a refugee.
[4] Section 5J(6) of the Act. Young J (with whom Gyles and Stone JJ agreed) made the point that the onus is borne by the applicant in relation to the statutory precursor to s 5J(6): NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195, [89].
The finding above sheds some light on the question of whether I should draw an adverse inference under s 367A of the Act as a result of the applicant’s failure to raise his religious beliefs before the delegate or either IAA review. The applicant’s evidence made clear that his choice to be baptised in the Christian faith was not the culmination of an exploration of Christianity, in the usual way, but a step taken near to the beginning of that exploration. I accept his evidence that his identification as a Christian was much more recent and occurred some time after the COVID pandemic. I do not draw an inference unfavourable to the applicant about the credibility of his claim to have become a Christian on the basis that that claim was not raised before the delegate made her decision.
During the hearing, the applicant demonstrated a good understanding of Christian doctrine. He showed me his much-annotated copy of the Bible, translated into Farsi. The applicant gave evidence that he regularly attends both church services and Bible studies. I accept that evidence.
The applicant gave evidence that he regularly passes out pamphlets on the Bible and Christian beliefs in [Suburb 2], a location chosen because of its large Iranian population. The applicant had previously submitted photographs of himself engaged in this activity. The applicant also gave evidence that he engages the people he meets and proselytises to them. A key element of the definition of “proselytise” is the act of converting a person or people to a religious faith.[5] I accept that the applicant does so.
[5] L Brown (ed), The New Shorter Oxford English Dictionary (1993), p 2384.
During the hearing, the applicant cited the Gospel according to St Matthew. The passage to which he referred on more than one occasion appears during Christ’s Sermon on the Mount. It reads as follows:
Ye are the light of the world. A city that is set on a hill cannot be hid. Neither do men light a candle, and put it under a bushel, but on a candlestick; and it giveth light unto all that are in the house. Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven.[6]
[6] Matthew 5:14-16 (King James Version).
The import of that passage is that the applicant considers himself bound to proselytise as a Christian. He gave evidence, citing the passage above, that he would continue to proselytise if returned to Iran. I accept that evidence.
Country information indicates that Christianity is legal in Iran, although Protestant churches like the one to which the applicant belongs in Sydney are not.[7] Conversions which took place in Iran after 1979 and those which take place outside Iran are not recognised, with the consequence that the applicant is still considered a Shi’a Muslim and is subject to apostasy laws. Iranian authorities monitor Christian congregations closely to prevent proselytisation and recognised Christian churches do not proselytise or accept converts in order to remain open.[8] I accept that evidence.
[7] DFAT, Country Information Report: Iran (24 July 2023, version 2), [2.79]-[2.80].
[8] DFAT, Country Information Report: Iran (24 July 2023, version 2), [2.81].
Country information indicates that apostasy, the abandonment or renunciation of Islam, is not codified as a crime in Iran but is a crime under Sharia law. The death penalty is a potential punishment for apostasy but country information indicates that it is rarely carried out in practice.[9] I put to the applicant that there might not be a significant risk that he would suffer the death penalty as an apostate if he were to return to Iran. He replied that he would not be protected by a high public profile and that he considers that he would be in danger of suffering the death penalty.
[9] DFAT, Country Information Report: Iran (24 July 2023, version 2), [2.65].
Taken in conjunction with the fact that the applicant would proselytise if returned to Iran, I accept that the applicant would face the prospect of harsh punishment as a Christian convert and apostate. Regardless of whether that punishment were to include the death penalty, I accept that the applicant would suffer significant abuse simply as a result of being arrested. In that regard, I note that the applicant was assaulted before leaving Iran when being interrogated about possible apostasy at a time when the authorities had comparatively little evidence to support that charge. It is reasonable to conclude, and I find, that the applicant would suffer considerably worse treatment if detained for proselytising in Iran.
For the reasons above, I find that there is a real chance that the applicant would suffer harm in the reasonably foreseeable future for the reason of his religion if returned to Iran.
Political activity
The applicant gave evidence that he first came to the attention of the Basiji in Iran because he gave answers in the course of job interviews which revealed views at odds with those of the Iranian regime. I accept that evidence.
Since departing Iran, the applicant has participated in protest activity against the Iranian regime. [Mr A] gave evidence that the applicant has worked closely with him and his organisation over the past three years and that the applicant would be considered to be politically aligned with [Mr A], a known opponent of the Iranian regime. [Mr A] gave evidence that that association might place the applicant in danger if he were returned to Iran. I accept that evidence.
The applicant gave evidence that he has often been photographed participating in protests against the Iranian regime and provided examples of photographs of himself attending protests which have been published. I accept that there is evidence of the applicant participating in protests against the Iranian regime.
The applicant submitted evidence of his extensive output through social media. During the hearing, the applicant gave evidence that he had “tagged” and reposted posts by a person who was later arrested in Iran and that the applicant’s posts were then deleted by the Iranian authorities as a result of them deleting the original posts. The applicant gave evidence that the Iranian authorities would have access to the social media records of the person that they arrested and that the applicant would now be associated with that person in the records kept by the Iranian authorities. I accept that evidence.
The applicant gave evidence, and I have accepted, that he has been forthright in sharing views which are inconsistent with those of the Iranian regime both before and after departing from Iran. I find that he would continue to share those views if returned to Iran. I also find that the applicant would come to the adverse attention of the Iranian authorities on the basis of his protest and social media activity in Australia.
If the applicant were to return to Iran, he would need to do so on temporary travel documents because his passport is no longer in his possession. In that case, I accept that he would come to the Iranian authorities immediately upon his return.[10]
[10] DFAT, Country Information Report: Iran (24 July 2023, version 2), [2.202].
For the reasons above, I find that there is a real chance that the applicant would suffer harm in the reasonably foreseeable future for the reason of his actual or imputed political opinions if returned to Iran.
Does the applicant satisfy the refugee criterion for protection?
I have found above that there is a real chance that the applicant would suffer harm in the reasonably foreseeable future if returned to Iran for two essential and significant reasons, being his religion and his political opinion. I find that that harm would be serious and would, at least, constitute a threat to the applicant’s liberty. There is a real chance that the applicant would also suffer significant physical harassment and ill-treatment and that his life would be threatened. The harm would be systematic and discriminatory on the basis that it would be directed at the applicant specifically for the reasons of his religion and political opinion.
I find that the applicant would face a real chance of harm in all areas of Iran, given the nature of the Iranian regime. Because that regime would be the instrument of the harm, I find that there are no effective protection measures available to the applicant.
The application of sub-ss 5J(3)(c)(i) and (iii) Act means that the applicant cannot take reasonable steps to modify his behaviour so as to avoid a real chance of persecution.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 3 February 2025
Representative for the Applicant: Mr Michael Kah
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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