2009656 (Refugee)

[2024] AATA 2881

2009656 (Refugee) [2024] AATA 2881 (29 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Isobel McGarity

CASE NUMBER:  2009656 

COUNTRY OF REFERENCE:                   Iran

MEMBER:Senior Member G.A.F. Connolly

DATE:29 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2024 at 11:58am

CATCHWORDS

REFUGEE – protection visa – Iran – race – Faili Kurd – imputed political opinion – opposition to the government – education – employment – people smuggling conviction – detention – medical condition – risk of double jeopardy – fear of torture – decision under review remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 104, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is an Iranian citizen who is [an age]-year-old male, who is, by descent and religious faith, a Faili Kurd and a Shia Muslim.

2. The applicant applies to this Tribunal for review of a decision made by a delegate of the Minister for Home Affairs (Minister's Delegate) on 20 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).[1]

   [1] Applicant’s Protection Visa Decision Record of 20 May 2020.

3. While the precise history of this Iranian applicant is not (at all) clear despite the most strenuous efforts having been made to assemble the story of this applicant's life from materials contained in the files of the Department of Home Affairs (Department) and this Tribunal, this extract from the decision appealed against does seem to be correct in terms of the applicant's life and how he came to arrive in Australia[2]:

   ·     He is a Faili Kurd (also spelled as Feyli) and Shia Muslim who was born in [City 1], Kurdistan, Iran, and is an Iranian citizen. He moved with his family to Tehran when he was approximately [age] years of age and resided there until he was arrested in [Country 1] in 2013.

   ·     He experienced discrimination in Iran in terms of education and employment because Iranian society considered that Kurdish people were 'not Iranian' and didn't belong in Iran, as well as believing they were against the Iranian regime/government. He was not able to extend his education beyond [grade] and some schools would not accept him due to his race. Employers would often refuse to employ him due to his race.

   ·     Due to restrictions in obtaining employment he has subsequently been involved in selling [product 1] around the world for more than 20 years and this business involved him constantly travelling for short periods to countries such as [specified countries].

   ·     In 2013 he was arrested in [Country 1] on charges of people smuggling however he was eventually acquitted of these charges and released from prison at the end of 2013. At the time of this arrest his name was published on the internet in relation to people smuggling and as a result his younger brother in Iran was arrested by the Iranian authorities and convicted on people smuggling charges. His brother had been a partner in the applicant's [product 1] business. His brother has been in prison in Iran since 2013.

   ·     At around the same time his wife in Iran was also detained by the Iranian authorities in relation to his alleged people smuggling activities. She was released on bail after one night in detention due to her brother providing a surety for her release.

   ·     In 2014 he was arrested in [Country 1] again due to the fact that the Australian government had asked for his extradition to face people smuggling charges. In 2016 he was extradited to Australia in relation to alleged people smuggling.

   ·     He fears returning to Iran because the Iranian government will be aware of his people smuggling charges and will accuse him of smuggling 'anti-regime' people out of Iran. This will be compounded because he is Kurdish and Kurdish people are deemed to be against the Iranian government. He believes that the Iranian authorities will subject him to the death penalty due to his alleged people smuggling activities in [Country 1] and because he is Kurdish.

   [2] Applicant's Protection Visa Decision Record dated 20 May 2020 at page 2.

4. It is important to note, for the purposes of this case:

   A.that the applicant arrived in Australia owing to an extradition request made to [Country 1] by Australia in 2016. The applicant had already served a sentence of imprisonment in [Country 1] for his people smuggling activities. When the applicant was extradited to Australia, his name appeared in online news and it remains published on the internet.[3] The issue of his name appearing in online news, including in Iran, does not appear from the departmental and tribunal files to be a matter disputed by the Department;

   B.the applicant has had and still has a very serious medical condition, as I will outline below.

   [3] Applicant's submissions of 21 May 2024 at [1.4].

5. On 19 April 2024, the applicant appeared before the Tribunal.  The applicant was represented at this hearing by his solicitor, Ms Isobel McGarrity. The applicant's evidence was identical, or almost identical in form, to the evidence that he gave to the Minister's Delegate. In the Tribunal hearing, several aspects of the applicant's case became quickly apparent to me:

   ¾the applicant was given several opportunities to embellish or exaggerate his case but, on each occasion, he simply said to the Tribunal what he had said to the Department. In other words, the applicant appeared to be an honest person who was doing his best to make his case, based on his own story, but careful not to exaggerate it, however great the temptation may have been. 

   ¾the applicant’s capacity to recount his story in detail and chronologically – without referring to notes or any prepared statement – assisted the Tribunal in a way that informed decision-making.

   ¾the applicant's prior service in the Iran-Iraq War had not received a proper consideration by the Department, noting the applicant was a Faili Kurd, and that the applicant would likely be known already to the Iranian state, if only for his war service;

   ¾the applicant’s representative, Ms McGarity, prepared her client’s case with a degree of both precision and comprehensiveness – qualities, very often, at odds with each other in courts and tribunals – which has helped to resolve this case.

   For reasons that I will explain, these aspects have helped the Tribunal in the making of its decision. I particularly direct attention to what I said in the earlier case of 1717234 in respect of these sorts of matters.[4]

   [4] See my decision in 1717234 (Refugee) [2023] AATA 2409 (16 May 2023).

6. I have reviewed all the materials that are contained in the files of the Department and of the Tribunal.

7. For the reasons set out in this decision, the applicant’s case before this Tribunal must succeed and the decision of the Minister’s Delegate must be set aside.

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.

3. 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).

4. 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.

5. 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

6. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

THE AUSTRALIAN CROWN AND THE EXECUTIVE POWER

The Tribunal

1. It is important to set out this Tribunal’s constitutional position within the Executive Government of the Commonwealth of Australia.

2. Australia is a monarchical polity in which the Constitution (via s 61) vests the executive power in the Crown, to be exercised by the Governor-General as the monarch’s representative.[5] The monarch is the head of the federal executive[6] and the Governor-General is charged with the “execution and maintenance” of the Australian Constitution.[7] As both Sir Owen Dixon[8] and W. Anstey Wynes[9] wrote, the Crown was (and is) the central element of the Constitution and the Crown predominates every aspect of Australian governmental power. The Crown’s role and its prerogatives are crucial to an understanding of the Australian constitutional order and the the Executive Government.

   [5] “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

   [6] Professor John M. Williams, “The Crown: its Nature and Role”, in Martin Hinton and John Williams (Editors), The Crown: essays on its manifestation, power, and accountability (2018) University of Adelaide Press, Adelaide (SA), at 2.

   [7] Constitution, s 61.

   [8] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 304 per Dixon J.

   [9] W A Wynes, Legislative, Executive, and Judicial Powers in Australia, (1962) at 89.

3. While focus may understandably be drawn to the elected Parliament (Chapter I) or to the Judicature (Chapter III), the Crown occupies this central and unitary position as the foundation and apex of the Executive Government under our Constitution (Chapter II). In this respect, the Crown is both a source of loyalty and allegiance, as well as the Executive Government. The proper understanding of the Crown’s roles in the constitutional order is essential. As the preamble to the Constitution lays out, Australians unite, first, under the Crown and, only then, under the Constitution – and in that order of the ‘two unders’:

   WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established…

   The proper understanding of the Crown, and its emanations, such as this Tribunal, require a return to a rigorous study of constitutional history and what the Crown has historically done.  In this respect, I would adopt what Professor Adrian Vermeule of Harvard University wrote in his latest work on the classical legal tradition – a tradition which underlies both the civil law and common law traditions – and which tradition helped create the written and entrenched Australian Constitution: “We have first to understand the law as it really is; only then can we understand where we have abandoned the law as it really is, and how to recover it.”[10]  This recovery is part of our shared inheritance of Roman Law: “To jurisprudence the Romans gave the same definition as the Greeks gave to wisdom.”[11]

   [10] Adrian Vermeule, Common Good Constitutionalism: Recovering The Classical Legal Tradition (Polity Books, Cambridge (UK): 2011), at 179.

   [11] D.R. Kelley, “The Influence of Roman Law”, in The Oxford Handbook of the History of Political Philosophy (Oxford University Press: 2011) at 156.

4. Noting the foregoing, and the resulting duty articulated by Professor Vermeule to understand “the law as it really is”, any conscientious observer will immediately note that this Tribunal operates under statute[12] as a body that forms part of the executive government of the Commonwealth of Australia, the executive power of which is vested in the Crown.[13]  All executive acts are acts by and on behalf of the Crown. There is no exercise of executive power, such as the review of administrative decisions done by this Tribunal, which is not an act done by and on behalf of the Crown. After all, the statute that the Parliament enacted to create this Tribunal only has legal force because of the royal assent exercised by the Governor-General.[14] The Crown’s enduring existence, its prerogatives, and its particular duties, give rise to important if basic considerations which should inform both the exercise of executive power and its review by this Tribunal. Importantly, the position of the Crown that was outlined in 1667, that the Crown is “the fountain and head of justice and equity” - a proposition never doubted subsequently – must, too, be borne in mind.[15]  I now turn this aspect of the work done by this Tribunal.

   [12] Administrative Appeals Tribunal Act 1975 (Cth).

   [13] Constitution, s 61.

   [14] Constitution, s 58.

   [15] Baron Atkyns in Pawlett v. Attorney-General, Hardres Reports 465 at 469, cited in Dyson v Attorney General [1911] 1KB 410 at 421 by Farwell LJ.

5. This Tribunal is part of the Executive Government and it is not therefore a court. However, a Chapter II body such as this Tribunal must ensure it is true, too, to its historic charge to afford justice to those appealing to it for relief. To use the words of the distinguished former Justice M.D. Kirby AC CMG, this Tribunal acts as “…an instrument for the good government of a free society”.[16]  For as Professor Vermeule noted of the juridical realities of our time, whatever was the case in times past, "...the executive and administrative sectors of the state had come to structure citizens' experience of government"[17]. In other words, the decisions made by the administrative state affect real people who need means of timely redress – and it is this combination of monarchical history and the reality of the modern administrative state that explains why citizens, and, especially, vulnerable persons, need forums like this Tribunal.  The members of this Tribunal, then, who serve in an emanation of the Australian Crown, must be vigilant in their conduct of merits review of challenged decisions, to ensure that that those decisions are right, just, and well-founded.

   [16] Hon Justice Michael Kirby AC CMG, “A centenary reflection on the Australian Constitution”, The Round Table (2001), Vol 361, 589-606, at 589.

   [17] Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard University Press, Cambridge MA (USA): 2016) at 3.

6. At the same time, the Executive Government must deal with the world as it truly is, today. This is especially so when assessing those who are making claims on the Crown for its beneficence. In a passage in Machiavelli’s The Prince (1513), the fundamental challenge posed to even the best and most well-intentioned systems of government by bad people (of whatever origins and/or nationalities) was summed up in colourful but accurate language:[18]

   The reason for this is a fact about men in general: they are ungrateful, fickle, deceptive, cowardly and greedy. As long as you are doing them good, they are entirely yours: they will offer you their blood, their property, their lives, and their children—as long as there is no immediate prospect of their having to make good on these offerings; but when that changes, they will turn against you.

   Realistically, and helpfully, Machiavelli did in his later work, The Discourses (1519), note the crucial role played by law in deterring, or at least curtailing, the innate human capacity for corrupted and debauched behaviour, saying:

   Due consideration of this will cause all legislators, whether in a republic or a kingdom, to be all the more ready to restrain human appetites and to deprive them of all hope of doing wrong with impunity.[19]

   In the intervening five centuries since Machiavelli penned these words, nothing has occurred to change that fundamental mission of the State and the laws that must arm it with power. Nor has the human need for just redress against the decisions of State functionaries changed. Nor has the danger that someone seeking redress may be acting in bad faith. There is nothing new under the sun.[20] For as Sir Thomas More[21], that other great Renaissance thinker in matters of law and statecraft, noted of temptations towards Utopian thinking – and these are temptations that affect executive government decision-makers no less than philosophers – one must deal as best one can with the case that is at hand, albeit More put it more elegantly, instructing us to “… go through with the drama in hand as best one can, and not spoil it all simply because one happens to think another one would be better”.[22] The Executive Government, and its decision-making bodies such as this one – must be prepared to deal with cases brought by all manner of people, whether honest and forthright, or “deceptive” or perhaps “fickle” in their truthfulness.  It remains for Tribunal members to do their duty under the Australian Crown with complete fairness - but also a wise awareness of the human capacity for both virtue and vice.

   Statutory Guides For Decision-Making

   [18] Machiavelli, The Prince (1513) at chapter 17.

   [19] Machiavelli, The Discourses (1519) Book One at Discourse 42.

   [20] Ecclesiastes 1:9

   [21] Sir Thomas More (1478-1535) was an English lawyer, Member of Parliament, Lord Chancellor, renaissance author and thinker, and humanist.  More was canonised in 1935 by Pope Pius XI as Saint Thomas More for his refusal to make oaths that legitimated the reign of King Henry VIII.

   [22] Thomas More, Utopia (1516) at Book I.

1. The proceedings before the Tribunal are inquisitorial, as befits merits review, and the Tribunal is not in the position of a contradictor. It is thus always for any applicant to make their case. It is for the applicant to advance whatever evidence or argument they wish to advance in support of that case. In these cases, an applicant’s contention will be that Australia owes them protection obligations. It is this Tribunal’s task to inquire into the claim and decide whether the claim has been made out.

2. To emphasise the point, per ss. 5AAA and 423A of the Migration Act, an applicant is required to make their own case in as much detail as possible – and to do so at their first reasonable opportunity.  Otherwise, adverse inferences may be drawn against cases made later and, especially, after significant delay.  If an honest person is given an honest account of their own personal history, then there is, generally, no good reason why that account should be varied or become enlarged over time.  While this is not any sort of iron rule to be applied inflexibly, common sense requires that a certain scepticism should be exercised where an applicant’s personal history includes ‘new facts’ and ‘new occurrences’ not previously disclosed by them to the Department or the Minister's Delegate when she or he had the opportunity to do so.

3. I will now discuss these two sections in more detail:

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

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

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Noting the above, then, the issue in this case was whether the applicant had or had not made out his claim that Australia owes him protection obligations.

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

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 an individual’s 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. This is especially the case where the applicant has chosen, as here, not to appear before the Tribunal to make their case.

4. A decision-maker is not required to make the applicant's case for them. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.  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. This is especially so where they have made a claim that is consistent with the evidence, and there is no contradictory evidence or information, from either the Department or from country information materials. At the same time, an applicant who is not generally credible, or who is especially dishonest or evasive, will, almost always, have their case rejected.

   The Applicant's Claims

5. The applicant's claim was, per the Protection Visa Decision Record[23], that he was a Faili Kurd whose circumstances were likely to see him imprisoned in Iran, where he would almost certainly die, owing to his fragile medical condition.

   [23] Applicant's Protection Visa Decision Record dated 20 May 2020 at page 2.

6. Understanding the applicant’s claim requires a fair and fully informed understanding of the nature of, especially, the Iranian regime, and what are the risks that he may - or likely will – run should he return to Iran. It also is a claim that demands particular attention be paid to the applicant's medical issues.

7. It is common ground that this applicant is a convicted people smuggler.  He is a Shia Faili Kurd.  He has anti-regime political opinions.  So far as the records before the Tribunal indicate, his criminal conviction is limited to people smuggling.  The records before me indicate that the applicant has not ever been accused of any violent crimes, or crimes against women, or crimes against children.  The applicant's sole criminal offence is his people smuggling conviction.  While a very serious offence, it is not, here, alleged to have been an offence of violence. Moreover, it is an offence that the applicant has admitted to, at every stage of his case, and not tried to evade or deny. It is an offence for which the applicant has spent over a decade in prison in [Country 1] and detention facilities in Australia.

8. The applicant’s personal circumstances and the treatment by the Iranian state of people in his position would, he says, cause him to suffer significant harm if forced to return to Iran.

   The Faili Kurds and the Iranian Regime

9. It is important to emphasise that there is a high risk of the applicant being imprisoned in Iran. This was submitted in pre-hearing submissions and was the Applicant’s oral evidence at the hearing.

10. There is significant supporting country information on the risk of double jeopardy in Iran and the fact that the applicant has been imprisoned in [Country 1] and detained in Australia but would still risk further imprisonment should he return to Iran.  There is no reason that the applicant could not or would not be prosecuted again by the Iranian state. Indeed, the Department of Foreign Affairs and Trade (DFAT) notes:

    The Penal Code allows for the re-prosecution of an Iranian national for an offence committed and punished in another country where it would also be an offence under Iranian law. However, crimes committed abroad punishable by taz’ir (including drug trafficking) are excluded from re-prosecution in Iran if the accused is not tried and acquitted in the place of the commission of the crime or, in the case of conviction, the punishment is not – wholly or partly – carried out against them. The Iranian legal system is difficult to understand or predict and individual analysis of cases is complex. DFAT understands that those who serve their sentences and are released may later be made to serve further jail time for the same offence.[24]

    [24] Department of Foreign Affairs and Trade, DFAT Country Information Report - Iran, 24 July 2023, available at: [accessed 15 May 2024].

11. The Tribunal notes DFAT's Country Information Report: Iran of 24 July 2023, as follows, in respect of the applicant’s position as a Faili Kurd:

    Faili Kurds

    2.58 The Faili (also spelled Feyli, and commonly known as ‘Iraqi’) Kurds are a sub-group of the larger Kurdish population. Most, but not all, Faili Kurds originate from the Zagros mountain range that straddles the Iran-Iraq border. Some have lived in modern-day Iran for centuries and are citizens, and some have family on both sides of the border. Many had land and documents seized in the 1960s by the then-Ba’athist government in Iraq, which considered the Faili Kurds Iranian, and refugees from that time still live in Iran.

    2.59 Faili Kurds are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a and most other Kurds are Sunni), their location and their distinctive dialect. Some are Iranian citizens, however others are registered or unregistered refugees from Iraq. Accurate population estimates for citizens and refugees are not available, however DFAT understands they are not a significant proportion of the population. Those who are registered as refugees may be able to access some services (health, education, legal services) either through the Iranian government or services provided by the UNHCR, however this should not be assumed, and individual circumstances may vary greatly. Those Faili Kurds registered as refugees, like all other registered refugees, are entitled to government services and other rights under the Amayesh system. In contrast, undocumented Faili Kurds are not legally entitled to work, access government services or obtain birth, death and marriage certificates. Some Faili Kurd refugees returned to Iraq following the fall of Saddam Hussein’s Ba’athist government, although many remain in camps in Iran. According to a June 2021 article by Aljazeera, refugees who make it to the Kurdish Autonomous Region in Iraq face harsh conditions, including a lack of suitable accommodation, joblessness and threats of deportation back to Iran.

    2.60 Access to Iranian citizenship, even for those with Iranian ancestry, should not be assumed. In-country sources told DFAT in 2019 that Faili Kurd refugees with paternal Iranian ancestry are eligible for Iranian citizenship. Reports suggest that, while many Faili Kurd refugees have applied, only a small number have succeeded in obtaining Iranian citizenship, due to the lengthy and complicated process and the high costs involved (this is also true for applications for Iranian citizenship from other groups, including those who have married Iranians or resided in-country for generations). Other Faili Kurds have not applied for naturalisation because they do not have the required family members in Iran to prove their Iranian ancestry. Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians.

    2.61 DFAT assesses that Faili Kurds in Iran may experience a high level of official discrimination in the form of statelessness and may live in poor conditions in Iran. DFAT cannot confirm societal discrimination or violence against Faili Kurds

12. Under Iranian law, the crime of smuggling people into or out of Iran is a crime punishable by up to ten years’ imprisonment. To reiterate my earlier observation, there is no information as to whether anyone in the applicant's position could use any positive legal mechanisms to avoid reimprisonment – it is very doubtful, for example, that the applicant could ever successfully plead any sort of defence that approximates "double jeopardy" in an Iranian court and succeed.[25] The Iranian law against people smuggling applies to all Iranian nationals, including those outside the country. Article 1 of Iran’s Act of 1988 on Punishment of Smugglers of People Amending Certain Articles of the Passport Act and the Act on Entry and Residence of Foreigns in Iran states that (with emphasis added)[26]:

    [25] The great British legal historian, Sir William Blackstone, referred in his Commentaries on the Laws of England to the "universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence": Commentaries, Volume 4, Chapter 26.

    [26] DFAT Country Information Report: Iran, 07 June 2018, Section 5.22, pp.48-49,

    Article 1- Commission of smuggling persons from the borders of Iran or aiding and abetting in such smuggling shall be punished as follows:
    a- If the smuggler disturbs security of the country, s/he shall be imprisoned from two to ten years, should the act committed does not amount to fighting against the regime.
    b- If the smuggled person is forbidden to leave the country or to enter it or the smuggled person is also a smuggler, s/he shall be punished by imprisonment from 2 to 8 years and by payment of a fine amounting from Rials 2,500,000 to 10,000,000.
    c- If the smuggled person is convicted or accused of committing a crime which is in the jurisdiction of the First Degree Penal Courts, then the smuggler shall be imprisoned from 2 to 4 years.
    d- If the smuggled person is underage, the smuggler shall be imprisoned from 3 to 5 years.
    e- If the committed crime cannot be considered as amounting to any of the above crimes, the smuggler shall be imprisoned from 1 to 3 years.

    Note 1- If the smuggler is a government employee or works for entities affiliated to the government and has committed the crime by taking advantage of his/her position, further to the above punishments s/he shall be condemned to perpetual dismissal from public services.

    Note 2- Further to the above punishments, all the property acquired through the above crimes shall be subject to Article 5(3) of the Islamic Penal Act and the Act on the Manner of Implementation of Article 49 of the Constitution.3

    In its 2019 Trafficking in Persons Report, published on 20 June 2019, the US Department of State reported that the Iranian government had ‘continued to conflate human trafficking and human smuggling crimes’.4 The report did not, however, provide any further information which made specific reference to the Iranian authorities’ treatment of people smugglers.[27]

    I note that the text of Article 1(e) above, could, on its face, apply to the applicant.  It may be that the Iranian court with jurisdiction over the applicant could consider his criminal history in [Country 1] and Australia as being crimes within its meaning.  I express no concluded view but observe that relevant Iranian laws are drafted broadly and it is by no means clear that the applicant would not be a “smuggler” made liable under them – and thus liable to a significant term of imprisonment in Iran. 

    [27] 1 Sources that have been consulted during the course of the research undertaken in relation to this question include the CISNET database; the Google, Yahoo, Bing and DuckDuckGo internet search engines; the European Country of Origin Information Network (ECOI); the European Asylum Support Office (EASO) COI Portal; Lifos; ReliefWeb; the Immigration and Refugee Board of Canada (IRB); and UNHCR Refworld.

13. In this respect, given the obvious liability of the applicant to re-imprisonment in Iran, the United States Department of State’s 2022 Country Report on Human Rights Practices – Iran should, additionally, be heeded.  This report describes Iranian prison conditions as “harsh and life-threatening”.3 In 2022 Amnesty International described Iranian prisons as “cruel and inhuman conditions characterized by overcrowding, poor sanitation, inadequate food and water, insufficient beds, poor ventilation and insect infestation.”[28] As a result, Amnesty International reports that dozens of prisoners died in Iranian custody under “... suspicious circumstances involving credible reports of physical torture and/or denial of medical care”.[29]  It is a constant of historic and current reporting on Iran that its prisons, often, house inmates in abominable conditions and that medical services for those inmates are very few and far between.  These horrid conditions are imposed on Iranian inmates regardless of whether or not that inmate is imprisoned for criminal acts – or merely for political dissent against the regime of some kind.  It goes without saying, in the context of this case, that the Australian Government has, in recent years, sought to free Australian citizens who are detained in Iran.

    [28] Amnesty International, Amnesty International Report: 2022/23 - Iran, at page 196, available at Amnesty International, Amnesty International Report: 2022/23 - Iran, at page 196, available at >

    It is noteworthy that the UK’s Upper Tribunal (Immigration and Asylum Chamber) said this in a recent case concerning Faili Kurds returning to Iran especially at [5] and [10][30], drawing on that Tribunal’s earlier handling of Iranian Kurdish cases:

    [30] Upper Tribunal, Case No: UI-2023-003036KM (19 March 2024) at [15].

    “(1)     SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.

    (2)       Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.

    (3)       Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.

    (4)       However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.

    (5)       Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.

    (6)       A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.

    (7)       Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.

    (8)       Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.

    (9)       Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.

    (10)     The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.”

The Applicant’s Vulnerability

1. It is the applicant’s submission that he will be, or almost certainly will be, imprisoned in Iran on his return. He submits that he is particularly vulnerable to the effects of torture, inhumane treatment, and like punishments, given his significant medical conditions. In the applicant's submission, imprisonment is not the only possible outcome for him, noting that there have been recent executions by Iran of Kurdish prisoners.[31]  The reality of the appalling conditions in Iranian prisons are, the applicant says, made out by the country information reporting on conditions in Iranian prison.[32]

   [31] Iran International Newsroom (17 May 2024) ‘Amnesty Warns of Imminent Execution of Kurdish Prisoner in Iran’ and Kurdistan Human Rights Network (20 May 2024) ‘Iran sentences Kurdish political prisoner to death for second time’ death-for-second-time-2/ [accessed 21 May 2024]

   [32] See US Department of State (2023) Country Reports on Human Rights Practices: Iran

2. The applicant's overall submission is, in summary, that he will be arbitrarily deprived not only of his liberty in Iran, but also of his life, due to his age and medical condition, and the chronic shortcomings of the Iran prison system.[33]

   [33] Amnesty International (2020) ‘Iran: Kurdish activist needs medical care’ >

   The applicant's submissions on the question of his health vulnerabilities are that:

   A.in October 2023, he underwent [specified] surgery;

   B.there were complications post-surgery, which led to the applicant being put on oxygen;

   C.the applicant has been put on a "lifelong" medicine regime of taking [specified] medications; and

   D.the applicant has "... complex health problems that require specialist care."[34]

   The applicant's submissions notes that Iranian “...prison clinics are not equipped with the facilities required for addressing complex health problems. Nor are they staffed by an adequate number of qualified general practitioners, let alone medical specialists.”[35]

   [34] Applicant's submissions of 21 May 2024 at 3.6.

   [35] Amnesty International, Deadly Denial of Medical Care in Iran’s Prisons, April 2022,

3. There is no evidence from the Department that the applicant's medical conditions have been misdiagnosed or misdescribed or incorrectly stated or exaggerated. The only evidence of the applicant’s medical condition is that set out above and he Department and Tribunal files do not contradict this evidence. Accordingly, the Tribunal is able to accept the applicant's evidence as to his medical condition. This medical information being accepted, this means the applicant if imprisoned in Iran, again, then risks the strong likelihood of maltreatment, which in turn risks grave harms, including his death.

4. There is no evidence that Iranian prisons would provide the applicant’s required level of medical care, or, especially, provide the required medications to him. Therefore, the only issue is whether the applicant is likely to be imprisoned if he returns to Iran, because the consequences for the applicant of his re-imprisonment in Iran would, almost certainly, be his suffering harms of a significant, indeed, fatal, nature.

CONSIDERATION OF THE CASE

1. I have considered all of the applicant’s claims and the materials that he has filed with this Tribunal in making them. 

2. It is my view that, on the preponderance of the evidence set out above, that if the applicant were returned to Iran, he would very likely be a man of adverse interest to the Iranian security apparatus. The applicant would, certainly, be a man over whom a sword of Damocles would dangle, at the very least, if I can be forgiven a Greek metaphor in a case that involves the asserted state-successors to the Persian empire. 

3. This applicant is a convicted criminal who illegally aided and abetted those fleeing Iran, in clear defiance of applicable Iranian law.  Further, the applicant is also a Faili Kurd with military experience – thus someone who, even if he were not a criminal, would already be someone of adverse interest to the Iranian state. Therefore, when the facts are considered all together, it is clear that this applicant runs the grave risk of being an older man with a criminal history who will probably be arrested and detained in an Iranian prison, in which his fragile health and chronic medical conditions will go untreated. 

4. In other words, this applicant, if he returned to Iran, faces the high likelihood of suffering grave harms. If the applicant is arrested and imprisoned, as seems probable, then, given Iranian prisons' abominable conditions, he would suffer medical neglect, and at least risk dying there. In all the circumstances of this unusual case, the known facts and the law direct a result whereby the decision of the Minister's Delegate is to be set aside and the applicant succeeds on the complementary protection grounds: s 36(2)(aa) of the Migration Act.

5. This was not an easy case to decide, given that the applicant was a people smuggler and is a convicted criminal. In some respects, this applicant is the sort of man whose case should, instinctively, result in a firm rejection by Australia, noting that, as a general proposition, a smuggler, whether he be a smuggler of people or of goods, is invariably a liar – and liars cannot be believed.  It could, on one view, be very easy for a hostile view to be reflexively formed of this applicant and his claims for protection.

6. However, in this case, the facts are not that simple. Yes, the applicant was a people smuggler – but he came to people smuggling relatively late in his life and did so only briefly. More importantly, he was convicted of that crime and he has served out his prison sentence and has, since arriving in Australia, he has been in prison-like detention. In his hearing, this applicant was honest, contrite, and remorseful, about his criminal past.

7. Further, the applicant has significant medical issues as set out above.  The return of the applicant to Iran in all the circumstances of his case would risk the significant likelihood of his arrest and incarceration in an Iranian prison in which he would, after a prolonged and likely agonising period of time, die a very painful death.

8. It is my decision that the Applicant satisfies the criterion for a protection visa under s 36(2)(aa) of the Migration Act.  There are substantial grounds for believing that, as a necessary and foreseeable consequence of this applicant being removed from Australia to Iran, that there is a real risk that he will suffer significant harm, including death, the most significant of harms.  This applicant:

   A.is a Faili Kurd with military experience and a history of familial issues with the Iranian state and its security apparatus;

   B.is a returning asylum seeker who has a criminal conviction for smuggling persons including Iranians in defiance of Iranian law; and

   C.is an older man with a significant medical condition which, given that (A) and (B) will probably see him imprisoned – then he would, most likely, die in a brutal Iranian prison.

   On all of the evidence and submissions before me, the risk of the applicant suffering significant harm including death, should he be removed from Australia, is real and has been made out.

9. I will concede that it is unsettling to be in the position where it may look to some reading this decision that Australia is essentially "rewarding" the applicant for his prior criminal acts.  However, that would be incorrect for two reasons. 

10. Firstly, when Australia sought the applicant's extradition from [Country 1] to here in 2016, then the Australian Government took the applicant into Australia's domestic jurisdiction for all legal purposes – and that being so, the applicant became just another person who was and is entitled to seek remedies from and against the Commonwealth of Australia, as he has done here. Indeed, the applicant could be the worst criminal in the world, and, yet, even so, once he arrived here, he is just as entitled as anyone else to seek his legal redress under the law as it currently stands.  If the Parliament wishes to change the law, to prevent this case from happening, again, then that is a matter for them. However, this Tribunal can only decide cases in accordance with the relevant law in force at any one time.  No executive decision-maker under the Crown is free to dispense with the law.[36] No servant of the Crown is free to play the Utopian – the mentality that Sir Thomas More warned of – by wanting to ignore the law in front of him, preferring to think another result concocted by him would be better.[37]

    [36] R v Catagas (1977) 81 DLR (3d) 396 at 399 per Freedman CJ for a unanimous Manitoba Court of Appeal.

    [37] Thomas More, Utopia (1516) at Book I.

11. Secondly, this applicant has served his sentence.  Indeed, this applicant has now been imprisoned in [Country 1] and kept in prison-like detention in Australia for a period that is now well over a decade.  The applicant is almost [age] years of age with a very serious and chronic health condition. The proposition that this now older and quite sick applicant has not already been sufficiently punished for his past crime of engaging in people smuggling seems a proposition well beyond that of 'just desserts', or even a primitive sense of retribution, but instead approximates an almost sadistic understanding of punishment –which is at odds with Australia's proud observance of the rule of law.

FINDINGS

1. As set out above, I find, on my consideration of all of the evidence in this case, as well as its peculiar facts and circumstances, that the applicant is a man who has made good his claim for protection per s.36(2)(aa) of the Migration Act. I have read, and I do understand, what the Minister's Delegate said in his decision but, after my review of all the materials in this case and a long hearing of the applicant’s claim, I have come to an entirely contrary view.

2. I am the first to accept that this case has taken longer than may be desirable to resolve but it is better that justice is slowly done, after as many facts as are knowable are known, than risk that an injustice be inflicted with haste. This is particularly so noting this applicant’s own significant medical issues and the rather fragile existence of the Faili Kurds in Iran.

3. I will note in conclusion that the Faili Kurds in Iran are not the subject of extensive diplomatic and open-source reporting of the kind that is done on other, more obviously accepted, persecuted groups in Iran and elsewhere. This absence of ready reporting and analysis has delayed the making of this decision, as I have tried to find out everything that I can that is relevant to this applicant and the Faili Kurds.  It may be that the small size of the Faili Kurds as an Iranian ethnic bloc has caused a lack of academic interest, or it may be the lazy assumption made in governing circles that an historically Shia group would be readily accepted by their coreligionists in a confessionally Shia republic such as Iran.  I cannot be sure what is the reason, precisely. 

4. However, for a contrasting example, I did relatively recently set out in the Iranian protection case of 1905907[38], the often precarious position today of Christians in Iran, especially evangelical protestant Christians. I will not repeat what I say there in these reasons but, for example, there is abundant evidence that an evangelical protestant Christian is in more danger in Iran than are the members of historic Christian churches with orthodox doctrines of belief and salvation, such as the various rites of the Catholic and Orthodox churches, that are registered and largely accepted in Shia Iran by the Islamic Republic’s authorities.[39]

   [38] AAT case 1905907 of 01 December 2023 (Senior Member Connolly).

   [39] See especially:

5. By stark contrast, the diplomatic and open-source reporting on the Faili Kurds is, after the  exhaustive searching of libraries by me, altogether rather limited.  It is my hope that this decision may help turn academic and bureaucratic heads to looking more closely at the Faili Kurds, and other like groups who, while small in number, do seem, on the cases that come before this Tribunal, to be more at risk of persecution.

6. Finally, I wish to acknowledge the Tribunal's appreciation for the considerable work done in this very difficult case by the applicant's solicitor, Ms Isobel McGarity.  While obviously Ms McGarity appears in this Tribunal in her capacity as a representative of and advocate for her client, she did perform her duties with skill and with thoroughness, firmly pressing but not overstating her client's case, and filing clearly argued and well-supported written submissions. Such representation as Ms McGarity's is much appreciated by tribunals such as these and, hopefully, her conduct of this case will be a model for representatives in this and successor bodies.

CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

DECISION

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

   Statement made on 29 July 2024 at 11:57am

   Graham Alfred Frederick Connolly
   Senior Member
   Administrative Appeals Tribunal

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1)     Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)   that is not inconsistent with Article 7 of the Covenant; or

   (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)   that is not inconsistent with Article 7 of the Covenant; or

   (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)   for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)   for the purpose of intimidating or coercing the person or a third person; or

   (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H  Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note: For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J   Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

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

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)   disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L   Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)   a characteristic is shared by each member of the group; and

   (b)   the person shares, or is perceived as sharing, the characteristic; and

   (c)   any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

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

   (iii)the characteristic distinguishes the group from society; and

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

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36   Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

Country Information Report Iran', Department of Foreign Affairs and Trade (DFAT), 7 June 2018, Section 5.22, pp.48-49.
'Iran: Act of 1988 on Punishment of Smugglers of People Amending Certain Articles of the Passport Act and the Act on Entry and Residence of Foreigns in Iran', Islamic Republic of Iran, 1 November 1988.
'Trafficking in Persons Report 2019', US Department of State, 20 June 2019, at 244-246.

uploads/2023/04/WEBPOL1056702023ENGLISH-2.pdf.

uploads/2023/04/WEBPOL1056702023ENGLISH-2.pdf.

Human Rights Watch (2004) Torture, Detention, and the Crushing of Dissent in Iran and Amnesty International (2023)
‘Justice is an alien word’ [accessed 21 May 2024].

needs-medical-care and ‘Iran is putting political prisoners’ lives at risk by denying them medical care’
and Arezoo Yari, Saharnaz Nedjat,
Mohsen Asadi-Lari, and Reza Majdzadeh, BMC International Health and Human Rights (2017) 17:24

[accessed 24 May 2024].

Department of Foreign Affairs and Trade, Iran Country Information Report, 24 July 2023, at paragraphs 2.79 to 2.88.
US State Department, 2022 Report on International Religious Freedom: Iran, dated 15 May 2023, at section 2.
Danish Immigration Service and the Danish Refugee Council, Iran: House churches and converts, February 2018, pages 27-28