1907296 (Refugee) [2021] AATA 5179 (31 October 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1907296
COUNTRY OF REFERENCE:	Iran
MEMBER:	Frances Simmons
DATE:	31 October 2021
PLACE OF DECISION:	Sydney
DECISION:	The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on  31 October 2021 at 8:30pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – applicant rejected Islam and converted to Christianity – limited activity in home country – arrested and mistreated for unrelated reasons – some activity in Australia – relationship with Australian citizen – fear of harm from authorities and family – mental health – serious mental illness, little or no insight into condition, refusal to engage with service providers and guardianship order – returned failed asylum seeker – country information – real chance of attracting adverse attention of authorities on grounds of mental health – claim on grounds of religion not considered further – procedural history – no appearance at hearing – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4), (5), 36(2)(a), (aa), 65, 91K
Migration Regulations 1994 (Cth), Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628
DBB16 v MIBP [2018] FCAFC 178; (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
Prashar v MIMA [2001] FCA 57; (2001) 115 FCR 197

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
 
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.  	This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.  	The applicant is a citizen of Iran who was born on [Date]. He claims to have rejected Islam and to have converted to Christianity.  He first applied for a protection visa on 5 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was owed protection obligations. 
3.  	The complicated history of this matter has given rise to a situation where the applicant now has now made two protection visa applications. The first application was made in January 2017 and the second application was made in October 2020. For the reasons that are given below, the Tribunal finds that it has jurisdiction to determine the application to review the decision of the delegate on 4 April 2017 to refuse to grant the applicant a protection visa.  
4.  	The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Criteria for a protection visa
5.  	The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
6.  	Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
7.  	A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
8.  	Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
9.  	If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
10.  	In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Background
11.  	The applicant is a [Age]-year-old Iranian citizen who first arrived in Australia in May 2013. He is unmarried and has no children. He claims to be a Christian convert. Before he sought asylum in Australia he lived in Tehran where he obtained a diploma in [Subject] and has undertaken work as [an Occupation]. His parents still reside in Tehran as does his brother. According to the protection visa application he made in October 2020 he is in a relationship with an Australian citizen.
12.  	[Health services provider] records before the Tribunal indicate that in January 2020 [the applicant] voluntarily approached NSW police reporting that he had been homeless for around a year and was worried about his health. [The applicant] was directed to approach status resolution where he was taken into immigration detention.  
13.  	On 22 January 2020, shortly after he began residing in immigration detention, [the applicant] was diagnosed with “delusional disorder with systematised delusions of a persecutory nature”  by [a Health services provider] psychiatrist. At this time, [the applicant] declined antipsychotic medication. A s referral letter dated 14 May 2020 by [Dr A], psychiatrist and [Health services provider] Mental Health Medical Director, provides information about this diagnosis and the applicant’s interactions with [Health services provider] medical practitioners. The letter records that [the applicant] had declined access [Health services provider] medical services on multiple occasions. On 26 May 2020, [Dr A] applied for a guardianship order in relation to [the applicant]. [The applicant] was subsequently released into the community following the appointment of a Public Guardian [in] August 2020. 
14.  	[The applicant] is currently the subject of a guardianship order made by the NSW Civil and Administrative Tribunal (NCAT) [in] August 2021. To make a guardianship order, NCAT must be satisfied that the person has a decision-making disability which means that the person is partially or wholly incapable of managing themselves and there is a need for a guardian. The guardianship order made [in] August 2021 is a limited 12-month guardianship order which gives the Public Guardian custody of the applicant to the extent necessary to carry out the functions in relation to health care and legal services. The Public Guardian also has the function of making ‘all necessary decisions in relation to visa related matters that would ordinarily be made by [the applicant], including giving, requesting or receiving information and making representations on his behalf’. 
Procedural history
15.  	This case has a long and complicated history. [The applicant] first arrived in Australia by boat ([Code]) [in] May 2013.  After he arrived at Ashmore and Cartier Islands he was transferred to Darwin. In June 2013 he participated in an entry interview and in July 2013 he was granted a Temporary Safe Haven (TSH) visa (Subclass 449 Humanitarian Stay (Temporary) (visa). He remained in the Australian community for almost five years before he was permitted by the Minister to apply for a protection visa. 
16.  	On 5 January 2017 the applicant lodged an application for a Safe Haven Enterprise Visa(XE 790). He claimed that he would be persecuted in Iran because he had converted from Islam to Christianity. This application was refused by the Department on 4 April 2017. At that time the Department considered that he was a “fast track” applicant and that his application was reviewable by the Immigration Assessment Authority (IAA). The Department’s decision was affirmed by the IAA on 18 August 2017. 
17.  	[In] April 2018 the Federal Circuit Court dismissed the applicant’s application for judicial review of the IAA’s decision. Up until 2018 the Department acted on the assumption that the applicant was an “unauthorised maritime arrival” (UMA). However, in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (DBB16), the Federal Court concluded that a person is not an ‘unauthorised maritime arrival’ (UMA) through the act of entering Australia by sea at the Territory of Ashmore and Cartier Islands. This means that such a person is not a ‘fast track applicant’ and any decision to refuse to grant them a temporary protection visa or a safe haven enterprise visa (‘a protection visa’) is not reviewable by the IAA but by the Migration and Refugee Division of the Tribunal.
18.  	Following the decision in DBB16 the applicant was re-notified of the decision to refuse his SHEV application and his review rights. At the time of the visa application, the applicant was not a UMA or transitory person and he had previously held a Subclass 449 visa and had not left Australia since ceasing to hold that visa. Therefore, he was entitled to apply to the MRD of the Tribunal to review the delegate’s decision to refuse to grant him a visa. On 27 March 2019 the applicant applied to the Tribunal for review of delegate’s decision dated 4 April 2017 to refuse to grant him the visa. 
19.  	On 25 March 2020, the Tribunal invited the Secretary of the Department of Home Affairs to provide written arguments and information in relation to the issue of whether the applicant was  affected by the decision in DBB16.  The Tribunal received submissions from the Secretary on 17 April 2020.  On 20 April 2020 the Tribunal wrote to the applicant and invited to him to comment on its preliminary view that his application for a protection visa is invalid as a result of the operation of s.91K. Section 91K of the Act operates to prevent non-citizens (other than UMAs or transitory persons) who hold, or have not left Australia since ceasing to hold, a temporary safe haven (TSH) visa  from making a valid application for a visa (other than a temporary safe haven visa). The Tribunal also provided [the applicant] with information about obtaining representation in relation to this review. 
20.  	At a hearing by video conference in May 2020 the Tribunal identified that a preliminary issue in this case was whether the Tribunal had jurisdiction to determine the merits of the review application or whether the application for a protection visa was invalid by operation of s 91K of the Act. [The applicant] reported he had been unable to acquire legal representation. When asked whether he had any medical conditions that the Tribunal should be aware of that might impact on his ability to participate in the review, he indicated that he did not. 
21.  	[In] May 2020, an application for a guardianship order was made by [Dr A], a psychiatrist at [Health services provider]. A guardianship order was made [in] August 2020 that gave the Public Guardian functions with respect to health services, legal services, and accommodation for a period of 12 months. The same order also gave the Public Guardian the function of making ‘all necessary decisions in relation to visa related matters’ that would ordinarily be made by the [applicant], including ‘giving, requesting or receiving information and making submissions on his behalf’. 
22.  	The matter was delayed while the Public Guardian arranged for the applicant to obtain legal representation. [In] August 2020, the Tribunal wrote to the Public Guardian and invited submissions on the issue of whether the application made by the applicant for a protection visa was invalid as a result of the operation of s 91K of the Act (‘the jurisdictional issue’). [In] October 2020, the Public Guardian appointed [Ms B] of [Refugee services provider] as a representative in this matter. At this time, the Tribunal also received written submissions from [Ms B] in response to its invitation to provide submissions on the jurisdictional issue. 
23.  	[In] October 2020 the Tribunal informed the applicant’s representative that an appeal in an unrelated matter which dealt with the jurisdictional issue was currently before the Full Federal Court. [In] October 2020 [Ms B] submitted that the Tribunal should await the outcome of the Federal Court proceedings before makings its decision in this case. [In] October 2020, the applicant lodged a further application for a SHEV [in] October 2020. In the circumstances, the Tribunal decided to take no further action in relation to the review until the Full Federal Court had handed down judgment on the jurisdictional issue. 
24.  	In May 2021 the Federal Court handed down its judgment in MICMSMA v CBW20 [2021] FCAFC 63. The Full Federal Court’s decision is authority that the TSH visa grants to those applicants affected by the judgment in DBB16 v MIBP (2018) 260 FCR 447 due to their arrival in Australia by boat at Ashmore and Cartier Islands are invalid because the applicants  are not and have never been UMAs. Therefore, the grant of the TSH visa to DBB16 affected applicants was invalid because the Minister’s decision proceeded on an incorrect understanding of the law. Because the TSH grant was invalid, s.91K did not apply. 
25.  	Following the decision of the Full Federal Court in CBW20, the Tribunal invited the applicant to a hearing on 27 May 2021. The representative sought a postponement on the basis that the applicant could not be located. At a directions hearing on 27 May 2021 the Public Guardian and [Ms B] advised that the applicant had been located the day before the directions hearing. In the circumstances, the Tribunal agreed to provide additional time for the provision of medical evidence and submissions, including about whether the applicant had capacity to participate in the hearing. Two subsequent requests for extensions of time to provide submissions and medical evidence were granted. 
26.  	On 5 August 2021 the Tribunal requested submissions by 31 August 2021, including any representations that the Public Guardian wished to make, in relation to: whether [the applicant] has the capacity to participate in a hearing; whether [the applicant] would face harm if returned to Iran, including for reasons relating to mental illness; and any other matter relevant to the review. 
27.  	[In] August 2021 NCAT made a Guardianship order in relation to the applicant. The guardianship order made [in] August 2020 was revoked and a limited twelve month guardianship order was made giving the Public Guardian custody of the applicant to the extent necessary to carry out the functions in relation to health care, legal services and the function of making ‘all necessary decisions in relation to visa related matters that would ordinarily be made by [the applicant], including giving, requesting or receiving information and making representations on his behalf’. 
28.  	On 31 August 2021, [Ms B] provided the Tribunal with a copy of the NCAT order and advised that the applicant intended to engage with mental health professionals to obtain psychological assistance and a report for the ATT but that [Refugee services provider] were not in a position to provide submissions in this matter because the applicant had indicated that he would prefer to have different representation and a further two week extension was requested to update the Tribunal about the psychological assessment and the issue of legal representation.  
29.  	At a directions hearing on 22 September 2021 the Public Guardian and [Ms B] advised the Tribunal that the applicant had been unable to obtain new legal representation and requested a further extension. The Tribunal expressed its concern that the applicant had not undertaken any psychological assessment despite having had the opportunity to do so and that there were no forthcoming medical appointments. The Tribunal made inquiries about the medical evidence that was available to NCAT when it made the guardianship order and after the hearing the Public Guardian provided its report to the Guardianship Division of NCAT. 
30.  	The Tribunal invited the applicant to a hearing on 12 October 2021. Before the hearing, the Tribunal was advised that the applicant was scheduled to attend a [Mental health services provider 1] appointment on 5 October 2021 and that submissions would be provided on 1 October 2021. This did not occur as the applicant again disengaged from services. On 11 October 2021, the Public Guardian provided the Tribunal with further medical information ([Health services provider] records) about the applicant. 
31.  	The applicant did not attend the hearing on 12 October 2021. The hearing proceeded with the Public Guardian and [Ms B] in attendance. Two unsuccessful attempts were made to contact the applicant by telephone before the hearing commenced. At the hearing, the Public Guardian advised that she had spoken to the applicant before the hearing. [Ms B] also provided information about her interactions with the applicant and his belief that [Refugee service provider] were working against him. With respect to the legal services function, the Public Guardian, [Ms C], noted that the applicant had not taken steps to obtain alternative representative and advised the Tribunal that the Public Guardian had instructed [Refugee services provider] to continue to provide representation for the applicant. 
32.  	On 19 October 2021 the Tribunal received post-hearing submissions. These submissions were accompanied by: extracts from the applicant’s [Health services provider] records dated 18 January 2020 to 14 May 2020; a report by [Mental health services provider 2] dated 17 May 2020; a report of the Public Guardian dated 17 August 2021; a Serco detainee profile containing details about the applicant that were recorded when he was taken into immigration detention in 2020. 
What are the applicant’s claims?  
33.  	The applicant claims that he will be persecuted if he is returned to Iran because he has converted to Christianity and rejected Islam. He claims he was arrested and mistreated by the Basji on three separate occasions between 2010 and 2012. He departed Iran on his own passport and does not claim to have evaded a travel ban or to be on a watch list. He claims that he is no longer in possession of his Iranian passport. He claims that he will attract the adverse attention of the authorities because of reasons of his religious beliefs and his status as a failed asylum seeker. 
34.  	As noted above, the applicant has been diagnosed with a serious mental illness. The evidence before the Tribunal indicates that the applicant does not accept this diagnosis and has refused to engage with health services. The applicant’s representative, instructed by the Public Guardian, submits that he will face serious harm or significant harm for reasons of his religion and imputed religion through his marriage-like relationship with an Australian citizen who is a Christian, his membership of a particular social group of people suffering from serious mental health conditions, his links to a western country (arising because he has spent a significant period of time in Australia and the fact that he has an Australian citizen partner), and his membership of a particular social group of failed asylum seekers. 
Claims made in the first application for a protection visa
35.  	The applicant claimed that he will be persecuted in Iran because he has converted to Christianity. In his application for a SHEV, the applicant claimed that he is a Christian who was unable to practice his religion in Iran. He claims he was interested in Christianity in Iran and learned about the teachings of Jesus through a friend and by watching Christian programs on satellite channels. He was unable to openly pray or read about Christianity because his family are heavily religious and would harm him if they found out he was not Shia. In the last two years he lived in Iran he refused to pray and follow Islam. 
36.  	The applicant claims that in Australia he attended bible studies and in February 2014 he converted to Christianity through [Church 1]. He has been attending church regularly since living in Australia. The Basij and government cause problems and harm people that are not Shia and he fears they will kill him because he will refuse to engage in Shia practices. He is a devout Christian and being able to practise Christianity by attending church to pray and recognising the importance of religious events like the birth of Jesus is important to him. He fears harm including execution, torture and inhumane treatment or punishment because he changed his religion and is a Christian.
37.  	The applicant claims that he was constantly harassed by the Basij in the street for no reason. In 2010 he was attacked by the Basij for celebrating the last Tuesday of the year and was beaten with a baton. In 2011 he was twice arrested for being outside with his girlfriend and held for one day on each occasion. He was not able to seek help or lead a normal life due to the oppressive political landscape in Iran. He knows of many people who have been killed by the Basij and fears the same would happen to him. He suffered mentally as a result of being arrested and feeling oppressed because he was unable to practise his religion.
Claims made in the second application for protection
38.  	The applicant’s second application for a protection visa was accompanied by a statement of claims signed on his behalf by the Public Guardian. According to this statement, the applicant is a Christian and he was unable to practise his religion as a result of living in Iran. He claims that he was forced to leave Iran because he did not believe in Islam and did not want to participate in Shia practices. He claims that he learnt about Christianity while in Iran from two Christian friends but it was difficult to access the bible and other books about Christianity as Christians are killed by the Iranian Government and his family were heavily religious and would harm him if they found out he had rejected Islam. He claims that he prayed in private as a Christian in Iran for two years before he left Iran. He claims he converted to Christianity in February 2014 through [Church 1] in Australia. 
39.  	The applicant claims that he was ‘constantly harassed in the street for no reason’. The applicant claims that in 2010 he was attacked by the Basij and beaten with a Baton for celebrating the last Tuesday of the year which is a symbolic event in Iran. In 2011, he was arrested twice by the Basij in Tehran for being outside with his girlfriend because having a girlfriend is prohibited by the Basij. On each occasion he was arrested and was not able to lead a normal life due to the oppressive landscape in Iran. He claims that he suffered mentally as a result of being arrested and feeling oppressed because he was unable to practice his religion. He did not seek help because the Basij has a presence everywhere and he feared he would be arrested and harmed if the Basij found out he was trying to escape an oppressive regime. 
40.  	The applicant claims that he will be persecuted because he changed his religion from Shia to Christianity. This is now of greater concern because his family have found out that he converted to Christianity, and if he returns to Iran, he will face a backlash. He has very limited contact with his family and speaks to his mother for one-two minutes. He states ‘there is a lot of tension’ because of what he has done. He describes himself as ‘a devout Christian’ and claims that it is important to him to be able to practice Christianity by attending church and recognising religious events. He claims that even while in immigration detention he continued to practice his religious beliefs and read the Bible daily (there is a small church, but he has only attended occasionally). He claims he would have to hide his beliefs and deal with how his family and people around him will treat him. He will be unable to adapt to a life where he is oppressed and mistreated. 
41.  	In addition to claiming that he will face religious persecution the applicant claims that he will be ‘known to be a failed asylum seeker and be considered a traitor to my country’. He claims he would be ‘subject to harsh treatment and be persecuted specifically due to my circumstances’ and that he may face harm from the Basij, the Iranian Government, his own family and the people around him. He claims that the harm will be inflicted by the Basij and the Iranian government because he is not Shia and will not comply with their religious laws. His family is angry at him for converting to Christianity as his parents are ‘very religious’. He no longer talks to his Dad and brother as his relationship suffered greatly due to differences in their religious beliefs. He also claims his neighbours ‘would rat me out to the Basij or the Iranian government authorities’. He fears that his status as a failed asylum seeker will make him more at risk of harm as he is against the government’s rules and regulations and the religious beliefs of the nation. 
Claims relating to the applicant’s mental health condition
42.  	The medical evidence before the Tribunal indicates that the applicant is a psychologically vulnerable person living with a serious mental health condition. It appears that the applicant may have experienced homelessness for a period, possibly a year in duration, before he presented to [a] police station in January 2020 and asked to be taken into immigration detention. While in immigration detention, [a Health services provider] psychiatrist, [Dr A] diagnosed the applicant with “delusional disorder with systematised delusions of a persecutory nature.”  [Health services provider] records from the period in which he was in immigration detention provide an insight into his behaviour before and after his diagnosis.
43.  	On 24 January 2020, [the applicant] was scheduled under the Mental Health Act 2007 (NSW) and sent for an assessment at [a] Hospital. [Health services provider] records state that he denied thinking he was being persecuted or being poisoned and that he was returned to immigration detention. [Health services provider] records between January 2020-May 2020 indicate that the applicant was ‘preoccupied by his systemised persecutory delusions’ and believed that ‘doctors having been making me unwell’, feared ‘people would try to kill him with poison’, and declined medication, and reported poor concentration and memory. He is described as ‘dishevelled, tense and hypervigilant to threat (periodically scanning the room)’ and ‘preoccupied by his systematised persecutory delusions’. In the period between January 2020 and May 2020, [Health services provider] records indicate [the applicant] repeatedly declined to see a psychiatrist and declined anti-psychotic medication. 
44.  	On 26 May 2020 [Dr A] applied for a guardianship order by the NSW Civil and Administrative Tribunal (NCAT).  [In] August 2020 NCAT made a guardianship order for 12 months. In October 2020 the Public Guardian arranged for legal representation for the applicant and the applicant was released from immigration detention in November 2020. In an August 2021 report, the Public Guardian recommended that the guardianship order be renewed for a further year in relation to health and legal services. The guardianship order made [in] August 2021 gave the Guardian the power including to give and receive information and make representations for the applicant. The Tribunal accepts the submission that the Guardianship order indicates that the applicant has been found not to have capacity to make decisions in respect of health and legal services that are in his best interests and that the clinical records demonstrate the nature and extent of his delusional and paranoid thinking.
FINDINGS AND REASONS 
Evidence before the Tribunal
45.  	The Tribunal has considered all the evidence before it. The applicant has given evidence about his background, his migration history and his claims for protection before the Department and to the IAA. As set out earlier, the matter has a protected history and the applicant has now made two applications for protection visas. The Tribunal has before it the most recent application for a SHEV made by the applicant on 28 October 2020 as well as his statement of claims dated 19 October 2020. The applicant was invited to attend an interview in January 2021 but could not be located and a decision has not been made in relation to this application.  
46.  	There is significant evidence before the Tribunal that was not before the delegate about the applicant’s mental health condition. The applicant has been diagnosed with a serious mental illness, a delusional disorder,  that impacts on his decision-making ability. The Tribunal accepts that the applicant is psychologically vulnerable and has had regard to the Tribunal’s Guidelines on Vulnerable Persons in undertaking this review. The applicant’s mental illness has impacted his ability to make decisions and, as a result, a Public Guardian was appointed in August 2020 and a further guardianship order was made in August 2021. 
47.  	In the exercise of its functions, the Public Guardian has instructed [Refugee services provider] to make submissions in this matter. The Tribunal has considered all the evidence before it, including the medical evidence and information provided to the Tribunal on his behalf by the Public Guardian. Having regard to the functions of the Public Guardian, and the evidence available to it the Tribunal formed the view that, while it is undesirable to proceed without hearing directly from the applicant, it is possible to make a decision in the applicant’s favour on the available material.  For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of reference 
48.  	The applicant claims he was born in Tehran, Iran and is a citizen of Iran. He has previously provided a copy of his birth certificate and evidence that he has completed medical service. He has consistently claimed that he is of Iranian nationality, and he speaks Farsi. On the evidence before it, the Tribunal accepts that the applicant’s identity is as claimed and that he is a citizen of Iran and no other country.  The Tribunal is satisfied that the applicant is a citizen of Iran and that Iran is the receiving country for the purpose of s.36(2)(aa) of the Act.
Christian claims
49.  	The applicant claims that he fears harm because of his Christian faith. DFAT reports that the Penal Code strictly prohibits the proselytization by religious minority groups — it is a capital crime for Muslims to convert non-Muslims and to enforce this prohibition authorities carefully monitor recognised Christian churches. DFAT reports that this is because the authorities interpret the growth in house churches as a threat to national security and periodically carry out raids against them. According to DFAT:
Raids focus particularly on house churches that actively proselytise or seek out new members. DFAT is unable to verify if the frequency of raids of house churches is increasing or whether a warrant is required to execute a raid. Local sources were unaware of any raids in the first half of 2019, although raids may not necessarily be publicised. According to the UK Home Office, the authorities use informants posing as converts to infiltrate house churches. Where the authorities receive a report of a house church, they may initiate a monitoring process to survey and collect information about its members. Local sources told DFAT that the authorities do not actively look for house churches. Rather, raids – where they occur – are usually the result of tip-offs by Muslim neighbours.
The judiciary has handed down long sentences in relation to house church activities. In July 2017, the Revolutionary Court convicted eight Christians of ‘acting against national security through the establishment of a house church’, ‘conducting evangelism’ and ‘insulting Islamic sanctities’, and sentenced the group to between 10 and 15 years’ imprisonment. 
….
According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs).
DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that engage in proselytisation activities and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. Of particular interest to the authorities are the leaders of house church congregations, who, according to local sources, face a higher risk of arrest and prosecution than ordinary congregants. According to these sources, while there have been instances of ordinary congregants being prosecuted, this is not common — most are released.
Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).
International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytisation activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees).
DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds. This may involve ostracism from one’s family and discrimination in employment.
50.  	The delegate was not satisfied that the applicant had genuinely converted to Christianity. The delegate noted that the applicant claims to have been regularly attending church services since February 2014 at [Church 1] [Suburb 2] and sometimes at [Church 2] which was closer to his place of residence at the time. The delegate made inquiries of [Church 1] [Suburb 2] and was advised that the applicant became an adherent member in February 2014 and attended church thereafter but that the applicant had not been seen for quite some time. The delegate accepted that the applicant became an adherent member of [Church 1] in February 2014, that he is a non-practising Muslim, and that he would be identifiable as a failed asylum seeker upon return to Iran. The delegate did not accept that he had rejected Islam or that he is a genuine Christian convert who would continue to practise Christianity if returned to Iran. 
51.  	In oral and written submissions, the applicant’s representative informed the Tribunal that the applicant is attending church online, has changed his name to [Alias], and is living with an Australian woman of Christian faith. While there is no evidence before the Tribunal to contradict these assertions, neither the applicant or his partner appeared before the Tribunal to give evidence about their religious beliefs and practices. The Tribunal accepts that the applicant has attended church and has interacted with Christian communities in Australia, including in Brisbane as [Health services provider] records indicate he joined the [Suburb 3] [Church 3] and lived in their accommodation.  Tribunal acknowledges that the applicant’s mental illness appears to have impeded him from putting forward evidence in support of his claim to be a practising Christian. However, on the limited evidence before it, the Tribunal is not satisfied that the applicant will seek out Christian house churches and practice his religious faith on his return to Iran. As the Tribunal is satisfied that there is a real chance that the applicant will face serious harm having found that the applicant is a refugee for the reasons set out above, it is unnecessary to consider these issues further. 
Claims to have been arrested and beaten by the Basij
52.  	In an interview in 2013 shortly after he arrived in Australia the applicant claimed that he had been twice arrested by the Basij because he was going out with his girlfriend. He claimed that the authorities restricted his freedom in respect of what he could wear, who he could associate with, and how he expressed himself. The applicant has also claimed he was beaten by the Basij in 2010 after celebrating the last Tuesday of the year. He also claimed he was arrested and detained for one day on two occasions in 2011 because he was outside with his girlfriend. The latest DFAT country report provides the following information about the Basij Resistance Force: 
5.4 The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force that operates under the command of the IRGC. The Basij was established shortly after the Islamic Revolution as an auxiliary law enforcement unit and was brought under the direct command of the IRGC in 2007. The Basij is one of the primary enforcers of internal security and moral codes, including in relation to Islamic dress. The Basij has a countrywide presence, with branches in virtually every Iranian city and town….. 
….
5.6 The state has periodically mobilised the Basij to suppress anti-government protests, including during the November 2019 unrest and Green Movement demonstrations. Basij members often receive less formal training than other Iranian security forces. International sources report that Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors. DFAT assesses that there is considerable popular resentment against the Basij, although this may vary according to location. 
53.  	In 2013 DFAT reported that ‘pre-marital and extra-marital relations are common in Iran, though rarely demonstrated or spoken of openly. DFAT reports that while prohibited by the law and frowned upon by the religious establishment and more conservative Iranians, there is greater tolerance today for mixed-gender interactions and relations outside marriage, particularly in the larger cities and it is common for unmarried couples to live together in long-term relationships in Tehran. Although the authorities generally turn a blind eye to unmarried couples appearing together in public, such couples may be arrested, in which case they will usually be taken to a police station, where parents or guardians are summoned, and released after making a written statement and sometimes paying a fine.
54.  	The Tribunal accepts as credible the applicant’s evidence about his previous interactions with Basij. His evidence about his interactions with the Basij align with contemporaneous country information which indicates that ‘Iranian youth can experience low-level harassment from authorities, such as searches, car checks and verbal warnings for dress and behaviour, and such enforcement can be heavy-handed and unpredictable, relating to the prevailing political atmosphere of the time’.   Having regard, to his past experiences in Iran and the behavioural manifestations of his mental health condition in Australia, the Tribunal accepts that if he were to return to Iran he would be likely to attract the adverse attention of the Basij. 
The applicant’s mental health 
55.  	The Tribunal finds that the applicant has been diagnosed with a serious mental illness, a delusional disorder with systemized delusions of a persecutory nature. The evidence before the Tribunal is that the applicant does not accept his diagnosis, refused anti-psychotic medication, and has not attended appointments with [Mental health services provider 1]. The Tribunal finds, based on the evidence about the applicant’s conduct in Australia, that it is extremely unlikely that he will voluntarily seek treatment or will be provided with appropriate medical care in Iran in order to alleviate the manifestations of his mental illness. The available medical evidence indicates that the applicant has little or no insight into his condition. It appears to be a manifestation of his mental illness that he does not want to engage with medical practitioners as he believes they may seek to harm him.  
56.  	At the hearing on 12 October 2021 the Tribunal discussed with the Public Guardian and the representative the information published by DFAT about mental health services in Iran:
[2.24] Need for mental health services in Iran is significant. An April 2018 study by the Ministry of Health and Medical Education found that nearly one-quarter of adults suffer from some form of mental illness, with women more likely to be affected than men. According to this study, the problem of mental illness is pronounced in Tehran, where one in three people are affected. In an earlier study (2017), the Ministry of Health and Medical Education found 12 per cent of Iranian adults were suffering from depression and 14 per cent from anxiety-related disorders. DFAT heard anecdotally that the deteriorating economic situation has contributed to a rise in mental illness, drug addiction and suicide. Ongoing trauma associated with the Iran-Iraq War is another major source of mental illness, and the rate of mental illness in areas most affected by the war is greater than the national average. 
[2.25] Iran has had a national policy on mental health since 1986. The policy aims to increase access to mental health services, including by building psychiatric wards in general hospitals and developing a mental health component in primary health care, and improve the availability of essential medicines. As part of its implementation of the Health System Development Plan, the government has increased the availability of counselling services and therapeutic interventions for individuals suffering from mental illness. The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are DFAT Country Information Report IRAN (April 2020) 16 prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced. 
57.  	The information DFAT provides on people with disabilities does not specifically address the experience of people who have a disability that arises from a mental health condition but notes that ‘understanding of the needs of people living with disabilities in society is low’ and a 2018 report by Human Rights Watch describes the discrimination and stigma that can be encountered by people with mental health conditions. 
58.  	The Tribunal finds that the applicant has been diagnosed with a mental illness that compromises his ability to make rational, risk-averse decisions. As  a consequence of his untreated mental illness, the applicant’s behaviour is unpredictable, unregulated, and contrary to his  own best interests. The report of the Public Guardian, dated 17 August 2021, which recommended that the guardianship order be renewed, described the applicant as ‘a vulnerable individual who lacks insight into his mental health issues and that these health issues have led him to ‘disengage from services that are seeking to support him’. 
59.  	Based on the available medical evidence, the Tribunal finds that, if the applicant  were to return to Iran, he would continue to manifest symptoms of a delusional disorder. While the applicant’s mother, father and brother reside in Tehran,  the Tribunal is not satisfied that the presence of his family is a protective factor. This is because the evidence before the Tribunal, including [Health services provider] records and statements by the applicant, indicates that he has a difficult relationship with his family, fears that his father will harm him, and persistently refuses to engage with health services. The Tribunal finds that, if the applicant were removed to Iran, he would not reside with his family or seek out health care and may be at risk of homelessness. 
60.  	Based on the available medical  evidence, the Tribunal accepts that as a consequence of his mental health condition, the applicant sometimes expresses delusional and paranoid beliefs and does not comply with and avoids authority figures. His representative has submitted that he will be unable to self-protect when interrogated and that he will disclose information about his Christian activities in Australia. Having considered the [Health services provider] records, the Tribunal accepts that the applicant may share his delusional beliefs with the Iranian authorities and, in so doing, may provide information to Iranian authorities about his life in Australia, including his interactions with members of Christian communities in Australia, his conversion to Christianity, his objections to what he views as oppressive religious practices in Iran, his refusal to follow Islam, his Australian partner, and the time he has spent living in Christian communities in Australia. The Tribunal also considers that the way the applicant expresses himself and his religious views as well as his account of his activities in Australia may lead to further questions from the Iranian authorities and result in the applicant being imputed with an adverse religious profile. 
Cumulative assessment
61.  	Taking into account the findings set out above and the country information referred to in this decision, the Tribunal has considered whether, when the applicant’s claims are considered on a cumulative basis, there is a real chance that he would face serious harm.  
62.  	The Tribunal considers the behavioural manifestations of the applicant’s mental health condition increase the risk that he will be subjected to interrogation and adverse treatment either when he is interrogated at the airport or in subsequent interactions with the Iranian authorities, including the Basij. DFAT reports that while authorities pay little attention to failed asylum seekers on their return to Iran, those who return – as the applicant will – on a laissez-passer passport are questioned by the Immigration police at Imam Khomeini International airport in Iran. The Tribunal therefore finds that the applicant will be questioned about the circumstances of his departure and why he is travelling on a laissez-passer. According to DFAT, questioning takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and /or immigration authorities suspect a criminal history. 
63.  	The medical evidence in this case provides insight into how the applicant interacts with  figures in positions of authority. Having regard to this evidence, the Tribunal is concerned that his expression of delusional and paranoid thoughts combined with the unregulated disclosure of information about his activities in Australia will attract the adverse attention of the authorities in Iran. The Tribunal has considered DFAT’s assessment that unless failed asylum seekers ‘were the subject of adverse official detention prior to departing Iran, they are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination’. However, the Tribunal is concerned that the applicant may be considered evasive and his delusional beliefs may be considered offensive by his interlocutors or lead to an extended interrogation. Furthermore, even if the applicant were to pass through the interrogation at the airport, the Tribunal considers that it is likely that the behaviours stemming from his mental illness will attract the attention of authorities and that he may share information about his religious activities in Australia or act in a way that leads the authorities to form the view that he is a non-believer.  
64.  	The applicant has been diagnosed with a serious mental illness that compromises his ability to make decisions in his best interests and that, as a consequence of this condition, he may express himself in a way that will attract the adverse attention of the authorities. The applicant has identified himself as a Christian to the Australian authorities in immigration detention in 2020. The Tribunal has been informed that he is now in a relationship with a Christian Australian woman and during the COVID-19 pandemic he has engaged with online Christian services and changed his name to [Alias]. However, in the absence of evidence from the applicant or his partner or any official documentation of his name change, it is difficult for the Tribunal to be satisfied that the applicant would wish to practice as a Christian in Iran or that his partner is a practising Christian. However, the evidence does clearly show that the applicant has engaged with Christian churches and communities, albeit with different degrees of intensity, during the eight years since he first arrived in Australia. 
65.  	The Tribunal finds that, as a consequence of his unregulated behaviour, there is a real chance that the applicant will express delusional beliefs that may be offensive to the religious beliefs of his interrogators and that he may be seriously misjudged and misunderstood by the Iranian authorities. The Tribunal accepts that the applicant has rejected Islam. The Tribunal finds that the applicant is paranoid and distrustful of authority figures and this results in non-conforming conduct that is very likely to offend against prevailing religious and social norms in Iran and which may be perceived by the authorities as evasive and offensive. The Tribunal has accepted that the applicant was arrested by the Basij in the past, but these appear to be isolated incidents. However, the Tribunal is concerned that having regard to the manifestations of the applicant’s mental health condition, there is a real chance that he will attract the adverse attention of the authorities on his return.  
66.  	The applicant is a psychologically vulnerable person who has been diagnosed with a serious mental illness. The medical evidence before the Tribunal indicates that a consequence of the applicant’s mental health condition is that he does not consider himself to be ill and is distrustful of medical practitioners. It is therefore unlikely that he will seek medical treatment of his own violation and it is also unlikely that the Iranian authorities will be aware that he has a mental health condition. The Tribunal accepts that the applicant was born into the Muslim faith but no longer identifies as a Muslim and that, if he were to return to Iran, he would not conform to religious and social mores, and may share delusional and paranoid beliefs with the authorities. The Tribunal finds that, when questioned, the applicant may provide information to the authorities about his experiences with Christianity in Australia and his views about religious practices in Iran. 
67.  	The Tribunal finds that there is a real chance that the applicant’s conduct and behaviour would be regarded as contrary to social and religious norms in Iran, where the authorities and members of society are very likely to be unaware of his mental health condition. The Tribunal considers that there is a real chance that the authorities may impute the applicant with an adverse religious profile and/or suspect him of apostasy. While the applicant did not have an adverse profile at the time he departed Iran and there is no suggestion that he is on a watch list, the Tribunal considers that there is a real chance that he will attract the adverse attention of the authorities due to behaviours stemming from his mental health condition, including expression that contravenes social and religious mores and may lead the Iranian authorities to impute him with an adverse religious profile.  
68.  	Under s.5J(1) of the Act, a person has a well-founded fear of persecution if there is a real chance that he would be persecuted in his country of nationality for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s.5J(1)(a) must be the essential and significant reason for the persecution, it must involve serious harm, and must involve systematic and discriminatory conduct. Persecution for reasons of religion can include persecution that occurs because an applicant  is perceived to have a particular religion or because an applicant does not have a particular religion or because the applicant’s conduct offends against the religion of the alleged persecutors. The Tribunal considers that the applicant’s reactions if questioned by the authorities (including if he is questioned about converting to Christianity or, more generally, his religious beliefs) are unpredictable and may appear evasive or offend against the religious sensibilities of his interlocuters. As noted above, DFAT reports that Muslim converts to Christianity risk arrest and detention if their conversion is revealed, and that the Iranian regime sometimes uses national security charges against Muslim born converts to Christianity.
69.  	Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. The Tribunal accepts that the applicant has a decision-making disability which has led to the imposition of a guardianship order and that the medical evidence indicates that he does not accept his diagnosis and will not seek out medical treatment of his own volition.  In the case of the applicant, his mental health condition means that his behaviour manifests in ways that compromise his ability to make decisions in his best interests and give rise to a real chance that the applicant’s expression and behaviour will impute him with an adverse religious profile, which is the essential and significant reason for his fear of persecution. Therefore, the applicant cannot take steps that would avoid the chance of persecution.  
70.  	The Tribunal is satisfied that, if the applicant were to return to Iran, there is a real chance that he would face significant physical harassment and significant ill-treatment at the hands of the Iranian authorities. DFAT reports that even for ordinary Iranians interaction with the security forces can be unpredictable — influenced by the prevailing political environment and individual personalities. The Tribunal accepts that the manifestations of the applicant’s mental health condition elevate the risk that he will be imputed with an adverse religious profile. In its 2021 World Report in relation to Iran, Human Rights Watch reports that ‘[t]orture and other ill-treatment remained widespread and systematic, especially during interrogation’. The same report notes that ‘Iran’s police, intelligence and security forces, and prison officials subjected detainees to prolonged solitary confinement, beatings, floggings, stress positions, forced administration of chemical substances and electric shocks’, while the Penal Code continued to provide for corporal judicial punishments amounting to torture, including flogging, blinding, amputation, crucifixion and stoning. These types of abuses occur in an environment of impunity where torture and other means of mistreatment of detainees are used as a means to extract information.  DFAT is unable to establish whether a complaints office exists for the Islamic Revolutionary Guards Corps or the Basij but considers it is unlikely that a complaint from a member of the public against a law enforcement officer from any agency would result in prosecution. 
71.  	The Tribunal considers that the vulnerabilities of this applicant increase the risk that he will be harmed for reasons of his actual or imputed religion. The Tribunal is satisfied that there is a real chance that the applicant will be subjected to physical harassment, mistreatment, violence and/or threats of violence by the authorities if he were to return to Iran. The Tribunal considers the seriousness of the harm faced by the applicant at the hands of the Iranian authorities, including detention, threats and physical abuse, needs to be assessed in light of his status as a person with a serious mental health condition. In AGA16 v MIBP [2018] FCA 628, the Court accepted that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities. 
72.  	In summary, the Tribunal accepts that the real chance he will be persecuted by the Iranian authorities relates to all areas of the receiving country and that the persecution involves serious harm as required by s. 5J(5) and systematic and discriminatory conduct. The Tribunal accepts that the persecution he is at risk of suffering is for the essential and significant reason of religion, as there is a real chance that his conduct and expression will offend against the religious mores of the Iranian authorities and that he will be imputed with an adverse religious profile and perceived as an apostate.
73.  	For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he meets the meaning of ‘refugee’ set out in s.5H of the Act.
CONCLUSION 
74.  	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)(a).
decision
75.  	The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Frances Simmons
Member

Attachment  -  Extract from Migration Act 1958
5 (1)	Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)	severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)	pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)	that is not inconsistent with Article 7 of the Covenant; or
(d)	arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)	that is not inconsistent with Article 7 of the Covenant; or
(b)	that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)	for the purpose of obtaining from the person or from a third person information or a confession; or
(b)	for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)	for the purpose of intimidating or coercing the person or a third person; or
(d)	for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)	for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country,  in relation to a non-citizen, means:
(a)	a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)	if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H	Meaning of refugee
(1)	For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)	in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)	in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:	For the meaning of well-founded fear of persecution, see section 5J.
…
5J	Meaning of well-founded fear of persecution
(1)	For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)	the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)	there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)	the real chance of persecution relates to all areas of a receiving country.
Note:	For membership of a particular social group, see sections 5K and 5L.
(2)	A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:	For effective protection measures, see section 5LA.
(3)	A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)	conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)	conceal an innate or immutable characteristic of the person; or
(c)	without limiting paragraph (a) or (b), require the person to do any of the following:
(i)	alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)	conceal his or her true race, ethnicity, nationality or country of origin;
(iii)	alter his or her political beliefs or conceal his or her true political beliefs;
(iv)	conceal a physical, psychological or intellectual disability;
(v)	enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)	alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)	If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)	that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)	the persecution must involve serious harm to the person; and
(c)	the persecution must involve systematic and discriminatory conduct.
(5)	Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)	a threat to the person’s life or liberty;
(b)	significant physical harassment of the person;
(c)	significant physical ill‑treatment of the person;
(d)	significant economic hardship that threatens the person’s capacity to subsist;
(e)	denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)	denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)	In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K	Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)	disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)	disregard any fear of persecution, or any persecution, that:
(i)	the first person has ever experienced; or
(ii)	any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:	Section 5G may be relevant for determining family relationships for the purposes of this section.
5L	Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)	a characteristic is shared by each member of the group; and
(b)	the person shares, or is perceived as sharing, the characteristic; and
(c)	any of the following apply:
(i)	the characteristic is an innate or immutable characteristic;
(ii)	the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)	the characteristic distinguishes the group from society; and
(d)	the characteristic is not a fear of persecution.
5LA	Effective protection measures
(1)	For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)	protection against persecution could be provided to the person by:
(i)	the relevant State; or
(ii)	a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)	the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)	A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)	the person can access the protection; and
(b)	the protection is durable; and
(c)	in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36	Protection visas – criteria provided for by this Act
…
(2)	A criterion for a protection visa is that the applicant for the visa is:
(a)	a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)	a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)	a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)	is mentioned in paragraph (a); and
(ii)	holds a protection visa of the same class as that applied for by the applicant; or
(c)	a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)	is mentioned in paragraph (aa); and
(ii)	holds a protection visa of the same class as that applied for by the applicant.
(2A)	A non‑citizen will suffer significant harm if:
(a)	the non‑citizen will be arbitrarily deprived of his or her life; or
(b)	the death penalty will be carried out on the non‑citizen; or
(c)	the non‑citizen will be subjected to torture; or
(d)	the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)	the non‑citizen will be subjected to degrading treatment or punishment.
(2B)	However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)	it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)	the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)	the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…