1315134 (Refugee)

1315134 (Refugee) [2015] AATA 3975 (15 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1315134
COUNTRY OF REFERENCE:                  Iran
MEMBER:Hilary Lovibond
DATE:15 October 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 15 October 2015 at 2:21pm

CATCHWORDS
Refugee – Protection visa – Iran – Federal court remittal – Risk of harm – No political profile – Green movement supporter – Conflict with the police – Detained – Involved in a fight – Departed the country on a false passport – Returnee from the west – Mental health issues – Vulnerable person – Diagnosed conditions – Inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iran, applied for the visa on [date] November 2012 and the delegate refused to grant the visa on [date] October 2013.
The applicant is a single [age] year old man from Tehran who claims to fear harm in Iran because he departed the country on a false passport while required to report monthly to the police following his arrest and torture during the post-election protests in 2009 and because he has sought asylum in Australia. The delegate refused to grant the visa because she found the applicant’s claims were not credible, the applicant had no political profile with the Iranian authorities and did not face a real chance of serious harm or a real risk of significant harm.
The applicant appeared before the Tribunal on 9 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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 Tribunal has had regard to these guidelines and country information assessments to the extent that they are relevant to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution or there is a real risk he would suffer significant harm if removed from Australia to Iran. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant’s evidence about his identity has been consistent throughout. On the basis of the applicant’s evidence and copies and translations of a number of Iranian documents in his name on the Department’s file the Tribunal accepts that his identity is as stated.
The applicant has given consistent evidence about his origins in Tehran, his family, education and employment. On this evidence the Tribunal is satisfied that the applicant was born in Tehran where he lived until leaving for Australia, completed all but the final year of his secondary education and worked [in a certain role] and later [in another occupation]. The Tribunal accepts also on that applicant’s evidence that his parents are separated and live in Tehran and his sister lives with their father while one brother lives in [another country]. He has also claimed that his older brother was missing for a number of years and that he learned shortly before the hearing that he was being held in [Prison]. These claims are dealt with in more detail below.
Country of reference
On the evidence before it the Tribunal accepts that the applicant is a national of Iran. The evidence before the Tribunal does not indicate that the applicant has the right to enter and reside in a third country and the Tribunal finds that s.36(3) does not apply. The Tribunal finds that Iran is the applicant’s country of reference and accordingly, has considered his claims against Iran.
Credibility and ability to take part in the hearing
The Tribunal has significant concerns with the applicant’s credibility arising from multiple, significant inconsistencies in his evidence, aspects of his claims which conflict with established country information and doubts about the plausibility of some of his claims. In assessing his credibility the Tribunal has been mindful of his claims regarding his health and has considered whether this affected his ability to participate effectively in the hearing. The Tribunal has also had regard to the fact that at the time of the hearing, almost six years had passed since the 2009 Presidential elections in Iran and other events about which the applicant was giving evidence and that the applicant has given evidence at different points over a period of more than three years.
At hearing the applicant told the Tribunal he was under psychiatric and psychological observation when he got to Australia. Asked whether he had received psychiatric or psychological treatment since he had been in Australia he said he told his lawyer about this the previous night; when he got here he saw someone [and] they said he needed psychological help. He saw a psychologist [but] it was too far away and too expensive so he only went 6 or 7 times. The Tribunal invited him to provide any relevant evidence from practitioners he had seen in Australia.
Following the hearing the applicant made, via his representative, multiple requests for extensions of time to obtain this evidence. On 21 May 2015 it was submitted that he was still in the process of obtaining medical evidence as he had attended [a refugee centre] on his arrival in [Australian city] but his counsellor from there had moved on and could not provide a report. It was submitted further the applicant had instructed he “became disengaged from all support people” but had recently been attending his GP who had referred him to a psychologist.
The representative also submitted copies of a letter dated [May] 2015 from [a doctor] of [a] Medical Centre referring the applicant to [another doctor] of [a specialist centre]. The referral letter stated the applicant reported having been tortured, had been “feeling very down in himself”, had started drinking alcohol after breaking up with a girlfriend six months earlier and had “some suicidal thoughts a few years ago but not now”. A second letter from [the first doctor] of the same date addressed “To whom it may concern” stated that the applicant had been suffering from “mixed anxiety and depression” and had been referred to a psychologist for further assessment and management.
A copy of a “GP Mental Health Plan (Treatment Plan)” for the applicant, also dated [May] 2015 was submitted and indicates under the heading “Mental Status Examination” that the applicant was flat in behaviour, appearance and affect, his mood was depressed, his attention and concentration were very poor, his short-term memory was quite bad, he reported poor sleep, low appetite and butterflies in the stomach. His thinking, perception, cognition, insight, insight, orientation, judgement and speech were reported as normal.
On [date] June 2015 the representative made a further submission stating that the psychologist to whom the applicant had been referred was not able to provide a report to the Tribunal because of “a substantial wait time for appointments”, but that extracts of the applicant’s detention health records were provided indicating that he had been subjected to torture and trauma in the past. Attached were:
·     a copy of a letter from September 2012 regarding a dental examination of the applicant which identified a “[dental conditions deleted]”;
·     IHMS notes from August 2012 stating that the applicant had “[a medical condition] but had declined counselling; and
·     IHMS notes from September 2012 reiterating the dental issues and indicating that the applicant reported being distressed due to a very tense racial situation developing in the detention compound.
At the time of writing no further evidence has been received by the Tribunal in relation to psychological or other treatment or diagnosis for the applicant. While the medical evidence tendered by the applicant is somewhat limited and does not include the opinion of a medical specialist, the Tribunal accepts that his GP diagnosed the applicant with mixed anxiety and depression and referred him to a psychologist. On the evidence before it the Tribunal is not satisfied that the applicant has received treatment from a psychologist or that any further diagnoses have been made for him.
The Tribunal has considered its Guidance on Vulnerable Persons dated March 2015 which states that a vulnerable person is one whose ability to understand and effectively present their case or to participate fully in the review process may be impaired or not developed and notes that emotional disorder including depression can affect a person’s ability to participate in the review process. The Guidance states that common symptoms which follow the experience of traumatic events are anxiety symptoms, dissociative symptoms, poor attention and concentration, memory problems, depressive symptoms, suicidal ideation, physical symptoms, symptoms characteristic of PTSD and behavioural problems.
In light of the Guidance and the medical evidence before it the Tribunal has been mindful of the possible difficulties faced by the applicant in making his claims. In a submission received by the Tribunal on 4 June 2015 the representative stated that the applicant’s lack of familiarity with the immigration process and formal interviews, his lifetime fear of authorities, his health and the fact he gave evidence through an interpreter may all have made it difficult for the applicant to recount precisely past instances of harm in Iran. At hearing, the applicant claimed several times that because of the time that had passed and his experiences in Iran he could not remember some things. Despite this, he spoke fluently and at length and responded confidently to questions, albeit claiming as below that he could not remember some things. He was generally assertive and at times challenged the Tribunal’s information sources and research. On the evidence before it the Tribunal finds that the applicant was able to and did participate fully in the hearing.
The Tribunal recognises that the necessary reliance on interpreters in taking evidence in cases of this nature can give rise to misunderstandings or inaccuracies. However, no concerns about interpreting in this matter were raised until the submission of 4 June 2015. The Tribunal notes that the issue was raised very late in the review process and the submission was not supported by any examples of how the use of an interpreter affected the applicant’s evidence. The Tribunal does not accept on the material before it that interpreting problems have impeded the applicant’s ability to give evidence accurately. While the Tribunal accepts that the interview process may initially have ben strange and possibly difficult for him, having regard to his sometimes truculent demeanour at hearing it does not accept that he was impeded by a fear of officialdom from giving his evidence fully and accurately. Neither does the Tribunal accept that these factors account for the multiple, major discrepancies in his evidence, the claims which are at odds with established country information, his tendency to generalise or his sometimes indirect or even evasive responses.
The representative has submitted that the applicant’s health should be taken into account in the assessment of his credibility, which the Tribunal has done. However, the Tribunal does not accept that the health difficulties experienced by the applicant can satisfactorily account for discrepancies of the magnitude of those in the applicant’s evidence. The Tribunal accepts that minor inconsistencies in an applicant’s claims should not lead irrevocably to a finding that his claims are not credible and accepts also that memory can be unreliable, particularly after some years have passed. However, the Tribunal finds that when the applicant’s evidence is considered as a whole the matters noted above are not capable of easy explanation and are significant to the assessment of the credibility of his claims and thus go also to the necessary assessment of the risk to the applicant in Iran. The Tribunal finds the applicant is not a credible witness.
What has happened in the past?
2009 elections and protests

The applicant’s core claims relate to having been a supporter of Mir Hossein Mousavi and the Green Movement in the 2009 Presidential election. He has claimed he was an active participant in campaign rallies and protests and took part in the printing and distribution of campaign leaflets and other material. His evidence about these events conflicts with country information before the Tribunal and is marked by significant inconsistences with respect to when his claimed arrest took place, confused and conflicting explanations for this and generalisations about when and where he was involved.
The applicant has referred repeatedly in his written and oral evidence to the “first round” of the elections, claiming that he attended demonstrations during the first round and explaining when things happened with reference to the announcement of the first round results. In his statutory declaration of 15 November 2012 he claimed that he attended demonstrations in support of Mousavi and the Green Movement “during the first round” and that on two occasions “before the first round results were announced” strange men tried to get him to go with them but he avoided this. He stated further that “After the first round of elections my friends and I became involved in the election campaign leading up to the second round of elections”.
In his statutory declaration the applicant claimed that he was arrested “two days after the first round”. At hearing he told the Tribunal this “must have been two to three months after the elections” but he couldn’t remember clearly because of the time that has passed and the pressure he has been under. When the Tribunal pointed out this discrepancy he said he thinks it was the silent protests he was referring to. The Tribunal explained that this inconsistency in his evidence made it difficult to accept those claims were true. The applicant said when he did the interview he kept saying he couldn’t remember; he is kind of sure he said two months and it couldn’t possibly be two days. The applicant queried what the Tribunal was referring to, whether he had written it himself, when and where. The Tribunal explained it was referring to the statutory declaration he had signed as a true version of his claims, at the end of which was a notation from a translator and interpreter saying the contents of the statutory declaration had been translated for him; it showed the applicant the document from his file. The applicant acknowledged this but said he might have missed the part where it said two days; maybe he misheard or he wasn’t paying attention.
The Tribunal asked the applicant what he meant when he referred to the “first round” of the elections. He responded that in the first round Ahmadinejad and Mousavi were very close so they had a second round. Asked when the second round took place he said he thought about a month after the first round. The Tribunal explained that this was not supported by the country information about the election, which doesn’t say anything about two rounds of elections. The applicant asked where this information came from and said Iranian government releases are mostly lies; he was there and doing it and experiencing it. The Tribunal explained it was talking about information from a range of sources including the media, government and international human rights organisations and reports that are widely accepted as factual about what took place.
The Tribunal explained that the country information it had read indicated there was a period of campaigning before the election[1], during which some concerns emerged about electoral irregularities[2] and that after this the elections were held on 12 June and the results were announced very quickly[3], more quickly than is provided for by Iranian law.[4] There were a number of concerns identified from different provinces and people started to say there had been fraud.[5] Protests started the next day.[6] The Tribunal explained that none of the information it had read indicated there was a second round of elections because Ahmadinejad and Mousavi were close in their votes.
[1] Iran Human Rights Center 2010, Violent Aftermath: The 2009 Election and Suppression of Dissent in Iran, February, p. 6 Accessed 3 October 2012
[2] Ibid., p.7
[3] US Department of State 2010, Country Reports on Human Rights Practices 2009 – Iran, 11 March, Section 3; Katzman, K. 2012, Iran: U.S. Concerns and Policy Responses, UNHCR Refworld, 23 March, p. 10
[4] US Department of State 2010, Country Reports on Human Rights Practices 2009 – Iran, 11 March, Section 3; [4] Jones, S. et al. 2009, The Islamic Republic of Iran: An introduction, House of Commons Library, 11 December, p. 36; Katzman, K. 2012, Iran: U.S. Concerns and Policy Responses, UNHCR Refworld, 23 March, p. 11
[5] Chatham House and the Institute for Iranian Studies, University of St Andrews 2009, Preliminary Analysis of the Voting Figures in Iran’s 2009 Presidential Election, 21 June, pp. 2-3 and 5-6; US Department of State 2010, Country Reports on Human Rights Practices 2009 – Iran, 11 March, Section 3.
[6] Amnesty International 2009, Iran: Election Contested, Repression Compounded, December, p. 17; Katzman, K. 2012, Iran: U.S. Concerns and Policy Responses, UNHCR Refworld, 23 March, p. 11
The applicant responded that elections happened twice in 1388; the second was about a month later and after the second election they knew there was fraud and they had silent protests; it was then the special forces attacked them. The Tribunal explained that because his claims were not supported by the country information it may conclude he was not involved with those activities in the way he had claimed. In a post-hearing submission received by the Tribunal on 4 June 2015 it was submitted that the applicant wished to clarify that when he spoke about the first round of elections he was speaking about the process whereby the candidates were selected and the second round was the vote for the President.
This explanation is not supported either by the country information discussed with the applicant and cited above or by other information before the Tribunal which indicates that the Council of Guardians decided the final four candidates from the 500 names registered on 20 May 2009[7] and that the official campaign period ran from 20 May to 10 June 2009.[8] It also substantially undermines the applicant’s evidence in that he claims to have been heavily involved with Green Movement protests but to have been arrested after the “first round” – whether two days or two to three months – whereas the country information cited above indicates protests did not begin until after the announcement of the election results, or what he is claiming he meant by “the second round”.
[7] Ibid., p. 10
[8] Iran Human Rights Center 2010, Violent Aftermath: The 2009 Election and Suppression of Dissent in Iran, February, p. 6
Asked at hearing where he was when the election results were announced the applicant said he was at work; his workplace was near where most of the protests were, in [Town 1]. It was the day after the elections and people protested and had the silent protest. Asked where and when he had attended protests after the election results were announced the applicant did not respond directly, saying instead that information about the silent protest was spread by Facebook and messaging and he attended; it was like war, people were trying to kill each other and cars were trying to run people over. The Tribunal explained that it was looking for direct and factual answers about where and when he had attended protests and the applicant said it was wherever there were protests. Asked a third time where and when he said it was five or six years ago now and he couldn’t remember; he went to [University 1], that was most of them, and [a town] and [Town 1] which were small protests.
Asked how many times he attended protests he said he can’t remember, but he went to all the protests. Asked over what period this was he said it started after the silent protests until the end of Muharram, when Mousavi and Karroubi were imprisoned in their own houses. The Tribunal noted that it believed the house arrest of Mousavi and Karroubi had happened later than that and the applicant said no, it was exactly two months later. Country information cited in the delegate’s decision, a copy of which was given to the Tribunal by the applicant, indicates Mousavi and Karroubi were placed under house arrest in February 2011.[9] This occurred after the two leaders had called for protests in February 2011 in support of the Arab Spring protests taking place in other countries at that time.[10] The Tribunal finds that the applicant’s vague claims to have been to “all the protests” and the extent to which his claims regarding the timing of events key to his claims are not supported by the country information detracts significantly from the credibility of his claims.
[9] Freedom House 2012, “Countries at the crossroas 2012 – Iran”,
[10] ‘Opposition website confirms Mousavi and Rahnavard under house arrest’ 2011, Radio Zamaneh, 9 March; Human Rights Watch 2012, World Report 2012 – Iran, 22 January.
Asked at hearing to tell the Tribunal about the Green Movement the applicant responded that even if he didn’t know anything about it he could have just looked it up on the internet. The Tribunal acknowledged this but asked the applicant to tell what he knew about it. The applicant said it was also known as the Corrective Movement, based on the ideas and policies they had. The Corrective Movement had different ideas and policies about economics; they wanted to get the old ideas out and implement the new ideas. Asked when the Green Movement had started the applicant said they had the Corrective Movement from before; the Green Movement started about 6 months before the elections when the actual speeches began. The Tribunal put to the applicant that this was not supported by the country information it had read, which indicated the “Green Movement” was recognised after the elections.[11] The applicant said that information was incorrect; he was distributing flyers a month before the election and Mousavi was a Sayed and green is the colour of the Sayeds and he wore green in all the flyers and it became the Green Movement. Country information before the Tribunal indicates that green was the colour of Mir Hossein Mousavi’s campaign and became associated with his supporters and, by extension, with social and political reform; [12] other reports indicate that before the election Mousavi’s campaign was known as the “Green Wave”.[13]
[11] Human Rights Watch 2009, Halt the crackdown, 19 June; Taghavi, M. 2009, ‘Members of Ontario Parliament join thousands of Iranians in protest’, Salam Toronto, 23 June, Payvand /1248.html Accessed 12 October 2012; Erbentraut, J. 2009, ‘Will gay Iranians come out of the revolt better – or worse?’ The EDGE Network, 30 June
[12] Amnesty International 2009, Iran: Election Contested, Repression Compounded, December, p. 15; Iran Human Rights Center 2010, Violent Aftermath: The 2009 Election and Suppression of Dissent in Iran, February, p. 6 Accessed 3 October 2012
[13] Dagres, H. 2012, ‘VIEWPOINT: Three Years In, Is Iran’s Green Revolution Still Going?, Middle East Voices, 13 June Accessed 12 October 2012
On the evidence before it the Tribunal accepts the applicant may have supported Mousavi and the Green Movement and attended one or more campaign rallies and/or post-election protests, as did many thousands of other Iranians, particularly in the six months after the election. However, in light of the applicant’s confused, inconsistent and sometimes very general evidence and the extent to which it conflicts with the country information discussed above, the Tribunal does not accept on the evidence before it that the applicant had a significant level of involvement with the Mousavi campaign or the Green Movement or that he was involved in printing, transporting or distributing flyers. For the same reasons the Tribunal does not accept on the evidence before it that the applicant was twice approached by men who tried to get him to go with them. Before the delegate the applicant also claimed to have attacked a Basiji during a protest. He did not make this claim before the Tribunal or elsewhere and the Tribunal does not accept that he did so.
Arrest, detention and torture
As noted above, the applicant has also claimed that while with friends at a protest near [University 1][14] he was arrested, blindfolded and taken by car to an unknown location where he was held for a period he thinks was around seven days and tortured. [Sentence deleted]. He has claimed that he was unconscious for much of the time and is unclear exactly what happened but he was released after his father was able to exercise some influence due to his status as a war veteran. He has claimed he was not charged with any offence but he was named in the Revolutionary Court of Justice. He has also claimed that a friend, [Mr B], who was with him during the protests, was killed.
[14] [Source deleted].
As also noted above, his evidence about when he was arrested has been inconsistent and the Tribunal has significant concerns about the magnitude of that inconsistency and his confused attempts to explain it. He also stated at hearing that he was arrested in Muharram, a claim which is different again from his statutory declaration and the claim that this occurred “two or three months after the elections”. The Tribunal finds these inconsistencies cast substantial doubt on the credibility of these claims.
The Tribunal explained to the applicant at hearing that it may not accept that he had been arrested and tortured and may conclude that he was not of any adverse interest to the Government of Iran before he left. In response, the applicant spoke of a medical branch of the government that can see what damage has been done to a person and how that came to be and said his knees and his insides suffered from torture. He said he was [age] and hot-headed and did things he wouldn’t do now.
On the evidence before it, in light of its multiple and significant concerns as to the applicant’s credibility and having regard to the findings above that the applicant did not have a high level of involvement with the Mousavi campaign or the Green Movement and was not involved in the printing or distribution of flyers, the Tribunal does not accept that the applicant was arrested while taking part in a protest, or in any other circumstances. Neither does the Tribunal accept on the evidence before it that he was blindfolded, taken by car or detained for seven days or any other period. The Tribunal does not accept on the evidence before it that the applicant was [tortured]. It follows that the Tribunal does not accept that the applicant became unconscious while he was detained.
Further to the findings above the Tribunal finds also that the applicant did not come to the adverse attention of the Government of Iran due to his actual or imputed political opinion or for any other reason and was not of interest to the government of Iran at the time of his departure. The Tribunal accepts it is possible the applicant may have had a friend named [Mr B] who was killed during the post-election protests but on the limited evidence before it finds that while this may have been frightening and distressing for the applicant if it did occur, this has no bearing on the assessment of the risk to the applicant should he return to Iran.
Hospitalisation and injuries
The applicant has claimed that following his release he was unable to speak for a number of months or walk for a period, stated variously as three months and one month, and that he spent some time in a military hospital and was told by the doctor he “almost had a stroke”. As set out above, he has claimed that he saw a psychologist then and after he came to Australia.
He told the Tribunal at hearing that his father tried to get documents from the hospital where he was treated but was unable to. He said his [limbs] are his evidence and a doctor could testify about this. Asked if he meant he wanted to provide medical evidence, the applicant said he would get a medical examination wherever the Tribunal wanted. The Tribunal explained it was not asking him to do so but if he was claiming to have sustained injuries as a result of torture, whether he wanted the Tribunal to have regard to medical information about that was up to him. The Tribunal explained further that even if a medical examination did indicate he had suffered particular injuries, this would not prove how the injuries had been sustained as a doctor would not be able to establish this from a physical examination. The Tribunal suggested he discuss with his representative whether he would obtain medical evidence in relation to this. At the time of writing, no medical evidence other than that discussed above at [28]-[30] has been received by the Tribunal.
The Tribunal has considered above the medical evidence tendered by the applicant in the context of assessing his mental health and vulnerability and notes that on their face, the reports provide some, though limited, corroborative evidence of the applicant’s claims of torture. However, the Tribunal considers that in this regard, the reports are necessarily based on self-reporting by the applicant and relate to matters beyond the medical expertise of the authors. For this reason the Tribunal has given little weight to these reports as evidence of the events the applicant has claimed took place in Iran. The Tribunal accepts that the medical evidence submitted by the applicant indicates possible traumatic injury [but] is not satisfied on the evidence before it that this supports the applicant’s claims.
As the Tribunal has found above that the applicant was not arrested, detained or torture, it follows that on the evidence before it the Tribunal does not accept the applicant was hospitalised for any reason associated with his attendance at post-election protests in 2009, that he sustained any injuries or was unable to walk or speak for any period thereafter as a result of his treatment while detained. Neither does the Tribunal accept on the evidence before it that a doctor told him he had “almost” had a stroke.
Release and reporting requirement
The applicant has claimed that his father was able to secure his release from detention after making enquiries at court, because he was a military veteran and “knew certain people”. His evidence about this has been inconsistent as to when and how his father became involved: in his Protection visa statutory declaration he stated that his father went to [Court] and found out where he was after seven days. At hearing his evidence was discursive, vague and indirect: asked about the circumstances of his release he said after he was transferred to hospital his father tried to prevent him from going to court and becoming a political activist; he made lots of promises and posted lots of bail. The Tribunal noted that he had said in his entry interview that after seven days his name was sent to the Revolutionary Court and he met his father in the Revolutionary Court of Justice and that his evidence in that interview had been very specific but quite different from his later claims. The Tribunal explained the inconsistency may make it difficult for the Tribunal to accept those claims as reliable. The applicant said he could not have gone to court as he was unconscious and the Tribunal was asking questions very differently from the other lady.

Asked whether he was charged with any offences in relation to the events about which he had given evidence, the applicant said there were accusations; they made a case but it wasn’t followed because his father had many contacts. He stopped the process but he wasn’t able to eliminate the case. Asked again whether he was charged with anything he said no; in Iran they don’t even have to do that. Asked whether he had any documents from the Iranian government relating to any of these matters the applicant said his father tried to go to the Revolutionary Court but it was a dead end and he couldn’t get his hands on any of the documents.
The applicant has claimed that after his recovery he was required to report regularly to the local police station to sign in. His evidence about this has also been inconsistent: in his Protection visa statutory declaration (undated) he claimed he had to do this weekly and during his Protection visa interview he told the delegate that after two years this was altered to monthly, while at hearing he told the Tribunal he reported daily for the first six months and then weekly. He has claimed that as conditions of the undertaking he had to “vote for whatever they chose”, not engage in any political activity and notify the police if he was leaving the local area and that he was being monitored while he remained in Iran.
At hearing he raised a new claim, saying that he every time there was an election he was arrested three days before and released three days after it. The Tribunal noted that he had not mentioned this previously and explained that his inconsistent evidence about the undertakings and reporting may make it difficult for the Tribunal to accept his evidence was reliable or truthful. The applicant responded that nobody had asked him about the promises he signed, only about the times he signed them.
On the evidence before it and in light of the findings above that the applicant was not heavily involved in the Mousavi campaign or the Green Movement and was not arrested, detained and tortured and noting the significant inconsistencies in the applicant’s evidence, the Tribunal does not accept that the applicant signed an undertaking or promise of any sort. Neither does the Tribunal accept on the evidence before it that the applicant was required to sign in at a local police station or elsewhere at any interval, that he was monitored while he remained in Iran or he was arrested three days before “every election” and released three days after.
Contact with police and Basij
The applicant has also claimed that he got into a fight with some local boys when they insulted his sister. Asked at hearing about this incident he said it happened twice and once the police arrested them; he doesn’t think he has mentioned the second one; he was walking with his younger sister and they were holding hands because she is seven or eight years younger than him; even though they said they were brother and sister they were arrested and their father came and got them out; otherwise they would have gone to jail. The other time was a civil matter that has finished; some boys were bothering her, he got angry and they hit him. He went to the police station – the same one where he had to sign in - but the police didn’t follow it up because of him.
The Tribunal accepts it is plausible the applicant was picked up by the police because he was walking hand-in-hand with his sister and that his father arranged their release; this is consistent with country information regarding the response of the Iranian authorities to actual or perceived breaches of the restrictive behavioural and dress codes.[15] The Tribunal also accepts the applicant may have got into a fight with some boys who bothered his sister and that he went to the police station to report it but no action was taken. However, as the Tribunal has not accepted that the applicant was arrested, detained or tortured or that he signed an undertaking or was required to sign in regularly at the police station, it follows that the Tribunal does not accept that any perceived inaction by the police in response to his complaint was for any reason associated with the applicant’s past behaviour, attendance at campaign rallies or post-election protests and because of any record he had with the police.
[15] Department of Foreign Affairs and Trade 2013, Iran Country Report, 29 November, 3.60
The applicant has also claimed that he was regularly stopped in the street at checkpoints by special task force police or the Basij because he was clean-shaven and because they liked to harass him; he was searched and held for a few hours. The Tribunal accepts that this may have occurred as he claimed.
Military service
The applicant has claimed that he has not done his military service and so could not get a passport in his own name. He made this claim at his Protection visa interview and again before the Tribunal, but as discussed in more detail below, he also claimed at hearing that he got a false passport because he was not allowed to leave the country as a condition of the undertaking he signed. In seeking to explain how and why he avoided military service and whether he was in fact exempt he has given a number of overlapping and internally inconsistent claims. When asked at hearing why he didn’t serve he said he didn’t like it because it was by force. Asked how he had avoided it, the applicant said you have to register but unless they send the booklet of service you don’t have anything to do with them. Asked how come the authorities had not followed him up he said they don’t follow people up if they haven’t registered, because there are excess people.
The Tribunal suggested it seemed unlikely given his claimed arrest and ongoing reporting requirements that they would not have followed it up in his case. The applicant responded that six years ago he was [age]and not feeling too good so he was exempt; he was recovering from his injuries and people who have physical problems can be exempt. They saw the situation he was in. They said he could get an exemption but he didn’t.
The Tribunal explained that it may not accept he had not completed his military service. The applicant said neither of his brothers have done military service and they have not been followed up. In the undated submission received by the Tribunal on 4 June 2015 it was submitted that the applicant had instructed that “…it was the payment of bribes that ensured he did not have to complete military service”. The Tribunal finds the confused, inconsistent and internally contradictory statements made by the applicant about his military service detract significantly from the credibility of all his claims relating to this matter. On the evidence before it the Tribunal does not accept the applicant evaded military service by an act or omission contrary to Iranian law or, more specifically, by the payment of bribes. The Tribunal accepts it is possible he may been exempt from military service but in light of the findings above that he was not arrested, detained and tortured or seriously injured and hospitalised as a result, the Tribunal does not accept he was exempted because of injuries or ill-health as a result of these claimed events.
Departure from Iran
The applicant has claimed he departed Iran using a passport containing his photograph but someone else’s details which he “bought” from a man he spoke to on the phone but which was issued by the relevant Ministry and as a result, was included in the passport database. Asked at hearing about the passport he used he said it was counterfeit, in [a fake name]; he bought it. The Tribunal queried why he had told the delegate he departed using a legal passport obtained from [an agency] and the applicant said you can find these people with money; they have jobs in [the agency]. You can bribe them and they will get the passport issued from the Ministry. It’s real but it’s fake. He arranged it though a friend whose name he can’t remember; his friend contacted this person and they sent the money by motorcyclist; after a few days he sent back the ticket and the passport.
Asked at hearing to describe the processes when he departed the airport he said he got the ticket with the passport; he was very fearful because it was the first time he had left the country and because he was using the passport. There were three gates when he entered the airport. He passed the first security check and at the second one he gave them his luggage. At gate three they checked his carry-on luggage; that gate was controlled by Sepah. They checked his ticket and his passport and asked him where he was going; he said he was going to [another country]. The person asked if he was going to Australia and he was very fearful but he said no. The last gate was at the airport and they just checked the ticket and let you board the plane.
The Tribunal explained that the country information[16] indicates there are stringent document checking procedures in place for travellers departing Tehran at the international airport. According to this information the passport is checked a number of time including by immigration police.[17] The passport and personal information are checked on a computer system that includes a photo of the person together with a passport record. At this point the passport and exit visa are checked against the larger passport database.[18] The information suggests that because of these stringent checks it is very difficult to leave Iran using a passport that is fraudulent in any way.[19]
[16] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc. Fact finding mission to Iran 24th August – 2nd September 2008, April, Ibid.
[18] Ibid.
[19] Ibid.; Danish Refugee Council, Landinfo, Danish Immigration Service 2013, Iran - On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures - Joint report from the Danish Immigration Service, the Norwegian LANDINFO and

The applicant responded that as he had said, his passport was not counterfeit. The Tribunal acknowledged this but noted that the details in the passport were not his. The applicant responded further that the first gate he mentioned wasn’t technically a gate, just an entrance, an x-ray of the stuff you are bringing in and a metal detector. The first gate is the one where they check your luggage, your carry on; you stand in front of a kiosk and they check your details, ticket and passport and everything and you are allowed to go to the second gate. You put your carry-on in there and your ticket is checked and if they are suspicious of you they check you again. He told the Tribunal at this point that they were suspicious of him and they put him in a machine and it did a full body scan, though he’s not sure if it was left to right or up and down. The only document they requested was the passport.

The Tribunal explained that in light of the country information it had outlined to him it had concerns about how credible it was that he was able to leave Iran on a passport that contained his photo and someone else’s details. The applicant responded that many other people came here the same way as him. The Tribunal explained to the applicant that it may find he had left on a genuine passport in his own name.

In an undated submission received by the Tribunal on 25 November 2013 the representative addressed the delegate’s finding that it was not plausible the applicant had departed Iran illegally, citing country information from the Immigration and Refugee Board of Canada which stated, in part:

It may happen in practice that individuals who have fraudulent travel documents, or outstanding financial, military or legal obligations, or who are sought or under suspicion by the government for political reasons resort to paying bribes to the Itanian border official to pass through the control system unharmed. The higher the risk, the more they pay.

It was submitted that “…even if the applicant had not purported to pay bribes to get through at the time of his departure” it was inconsistent to say the applicant had travelled on a properly issued Iranian passport as he would have had to pay bribes to facilitate his exit due to not having done his military service.

On the evidence before the Tribunal and notwithstanding this somewhat confused submission, the applicant has not claimed at any stage that he paid bribes to facilitate his departure from Iran. Further, as the Tribunal has found above that the applicant did not unlawfully evade military service and was not a person of interest to the Government of Iran there would have been no need for him to do so: there is no clear reason, on the evidence before the Tribunal, why he could not have departed Iran on a genuine passport in his own name. The applicant’s evidence about the passport on which he left Iran has been vague and inconsistent. Having regard to the country information cited above regarding how difficult it is to leave Iran on a fraudulent passport, the Tribunal finds that the applicant departed on a genuine Iranian passport in his own name.

Authorities harassed his family

The applicant has claimed that since he has been in Australia the Iranian authorities have gone to the houses of both his parents asking where he was and that his father told them he had come to Australia. In his statutory declaration of 15 December 2012 his family told him the police had come to their house asking where he was and his dad told them that he had left but not where he was; they also went to his mother’s and brother’s houses. Asked at hearing when people had come looking for him and what happened he said he couldn’t remember exactly but when he was in camp they kept harassing his family, calling them and checking on him and coming to his house looking for him. Asked who “they” were he said the police and also the National Safety Police, a specialised unit for political activists.

Asked when this happened most recently the applicant said he couldn’t say. He wasn’t sure about the timing but when he was in camp after his entry interview he told his mother to tell his father to tell them where he was so they wouldn’t harass his family so much but they harassed them even more.

He claimed further at hearing that there was another occasion when someone from Australia called his mother’s house and his sister-in-law answered; he has a nickname [at] home and his family was very scared and they called him and told him and he told his case manager. Asked who he thought had made that call the applicant said he was surprised, he didn’t know; he told his case manager but she didn’t follow it up. The Tribunal noted that it didn’t seem there would have been much his case manager could have done and the applicant responded that she didn’t say who it was from because it was immediately after his interview. Asked whether he was suggesting someone from the immigration department had passed on his details and they had rung his home, the applicant said exactly. The Tribunal explained it had great difficulty accepting that had occurred. The applicant said many things have been broken; maybe this was one of them.

While the Tribunal accepts that if his family had in fact been harassed as to his whereabouts after his departure he would necessarily have had only hearsay knowledge of those events, the applicant’s evidence about this has been vague about these matters to an extent the Tribunal finds inconsistent with the potential significance of the claimed events. The Tribunal has found above that the applicant did not have a high level of involvement in the Mousavi campaign or the Green Movement, was not arrested, detained and tortured, did not evade military service, was not required to report regularly to the police and was not a person of interest to the Iranian government. It follows that there would be no reason for the Iranian authorities to pursue the applicant through his family. On the evidence before it the Tribunal does not accept the applicant’s family have been visited or received phone calls from the police or other agencies of the Iranian government or from anyone in Australia enquiring about his whereabouts.

The applicant’s brother

The applicant claimed at hearing that his older brother was in prison because of his political opinion. Asked when this happened he said they had no news of him for a long time and thought he might have left the country but they had recently discovered he is in [Prison]. As his brother lived with their mother when their parents separated he didn’t have much contact with him but he thought it was around five years he had been missing. The applicant said once long ago his brother tried to leave the country [because] he had political problems from Khatami’s election but he wasn’t allowed to leave. He thought this was about ten years ago.

Asked how they had found out his brother was in prison he said his mother bribed people to find out; he did not know who as he didn’t get much explanation from her. They don’t know how long he has been in prison or how long he will be there or whether he has been charged with any offence. So far his mother has only seen his brother twice. The Tribunal accepts it is possible the applicant may not have known his older brother’s whereabouts for some years, that his brother may at some point have been prevented from leaving Iran and even that his brother is in [Prison]. However in view of the applicant’s claim that he didn’t know whether his brother had been charged with any offence, the Tribunal considers the claim that his brother was in prison because of his political opinion is speculative and unsupported and the Tribunal finds this detracts from the credibility of this claim. On the limited and speculative evidence before it the Tribunal does not accept that the applicant’s older brother is being held in [Prison] as a political prisoner.

Does the applicant have a well-founded fear of persecution or face a real risk of significant harm in Iran?

The applicant has claimed to fear harm should he return to Iran for reason of his actual and/or imputed political opinion, arising from his support for Mir Hossein Mousavi, his involvement in the Green Movement and protests and because he came to Australia to seek asylum and left while on reporting conditions. He has also claimed to fear harm for reason of his membership of the particular social groups “failed asylum-seekers” and “returnees from a Western country” and with respect to the complementary protection provisions, to fear torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. He has not claimed expressly to fear harm for reason of his religious beliefs or lack thereof but has claimed that he was and remains a non-observant Muslim. The Tribunal considers therefore that a claim arises in relation to this and has considered it accordingly.

Asked at hearing where he would live if he returned to Iran, the applicant said in a graveyard. Asked what work he would do he said he can’t even think about it. He said they will kill him or harass him until he kills himself or he will kill himself first because he can’t even think about going back. Asked who he thought would harm him he did not respond directly, but said fifty percent of the people in Iran don’t believe in the government but are living there by force and fifty percent of the community believe in the government and the policies and if they find out anyone has spoken against the government they will drown them out.

The applicant has remained in contact with his family and there is no indication on the evidence before the Tribunal that he could not return to live with his father, or alternatively, live with his mother, should he return to Iran. His evidence indicates that he was employed throughout the time he spent in Iran after leaving school. On the evidence before it and in light of the findings above that he was not previously of interest to the Iranian authorities the Tribunal finds he would return to Tehran and live with one of his parents and that he would either be able to resume work with his brother or be self-employed as he was prior to his departure.

Actual or imputed political opinion

Mousavi, the Green Movement, 2009 election protests

Asked at hearing why he believed he could not return to Iran he said they will kill him or do something to make him wish for death. He said they would do this because he was very involved both before and after the elections, though in a very small role and they couldn’t kill the major players easily but Mousavi and Karroubi are imprisoned now and it is easier for them to kill the small people.
In the undated submission received by the Tribunal on 25 November 2013 the representative has cited numerous reports from a range of sources concerning the Iranian government’s response to the post-election protests in 2009 and the harsh and often violent suppression of dissent which followed. The Tribunal accepts that this occurred as documented and has considered below the extent to which it may be relevant to the assessment of the risk of harm to the applicant should he return to Iran.
The Tribunal has accepted, above, that the applicant may have supported Mousavi and the Green Movement and attended one or more campaign rallies and/or post-election protests but has found that he did not have a high level of involvement, was not arrested, detained and tortured and was not a person of interest to the Government of Iran. He has not claimed that he would continue to be involved in any political activity if he returned to Iran. As the Tribunal observed at hearing, he participated in rallies and protests at a time when hundreds of thousands of other people became involved around the 2009 elections.[20] That level of political mobilisation in Iran was unprecedented and according to the country information discussed below, did not recur around the presidential election in 2013. In this context and in light of the finding noted above that his involvement was minor, the Tribunal finds there is not a real chance applicant would to take part in any political activity should he return to Iran now or in the reasonably foreseeable future.
[20] Department of Foreign Affairs and Trade 2013, Country Information Report, Iran, 3.53
The Tribunal has had regard to country information cited by the delegate in her decision, a copy of which the applicant submitted with his application for review, including the February 2013 Danish Refugee Council, LandInfo and Danish Immigration Service report[21] which indicates that since 2009 there has been increased surveillance of political activity in Iran resulting in a fear of what may happen if an individual is detained by the authorities and that while organised activity may pose a risk to those involved individual activists are not automatically scrutinised. The same report cited a Western embassy as saying that the Green Movement had faded away and some political activity was allowed in the lead-up to the June 2013 elections without any resulting deaths in the streets. At the same time, an Amnesty International report cited by the delegate indicated that political activists, journalists and trade unionists were arrested and harassed by the authorities prior to the election.[22]
[21] Danish Refugee Council, LandInfo, Danish Immigration Service 2013, On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February
[22] Amnesty International 2013, “New briefing reveals crackdown on dissent”
As discussed with the applicant at hearing, country information before the Tribunal indicates that the authorities are not interested in taking action against ordinary individuals who took part in the 2009 protests but were no longer politically active.[23] The report indicates also that the view of sources at the Western embassies who provided information was that the ongoing risk to a individual who took part in protests in 2009 would be dependent on “…the circumstances of those who were registered during the election protests” and that while action against individuals with a political profile could not be conclusively ruled out, due to the very large number of people who took part in the protests “…the authorities would only track person who for other reasons are of interest”.[24] The applicant’s response to this information was that he is not the other people who went back to Iran; he is his own person.
[23] Ibid., 3.57; Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, p.49 -1CA9-49D1-BA32-EC3E599D646D/0/Iranen deligudgave.pdf Accessed 30 October 2014
[24] Ibid. p.50
As the Tribunal has found the applicant’s brother is not being held in [Prison] as a political prisoner it follows that the Tribunal finds there is not a real chance the applicant would be imputed with a political opinion against the government or seriously harmed for reason of his relationship to his brother. For the same reason the Tribunal finds there are not 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 he would suffer significant harm for reason of his relationship to his brother.
On the evidence before it and having regard to the country information discussed above, the Tribunal finds there is not a real chance the applicant would be seriously harmed for reason of his actual and/or imputed political opinion, or for any other reasons, as a result of his limited participation in campaign rallies and post-election protests, or his equally limited support for the Mousavi campaign and the Green Movement, should he return to Iran now or in the reasonably foreseeable future. For the same reasons the Tribunal finds also there are not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk the applicant would suffer significant harm for reason of his actual and/or imputed political opinion, or for any other reasons, as a result of his participation in campaign rallies and post-election protests, of his support for the Mousavi campaign and the Green Movement.
Military service
As the Tribunal has found the applicant did not unlawfully evade his military service obligations the Tribunal finds there would be neither a real chance that he would be seriously harmed nor a real risk he would suffer significant harm because he has not undertaken military service.
Conflict with the police
The Tribunal has accepted that the applicant was detained by the police when walking with his sister, that he was sometimes stopped by the Basij at checkpoints and also that he made a complaint to police after getting into a fight with some boys who harassed his sister. The applicant himself described the events involving his sister as civil matters which were finished, although his evidence suggested the attention from the Basij was sporadic and ongoing. On the limited evidence before it regarding these events the Tribunal does not accept he suffered serious harm or significant harm as a result of any of these events. On the evidence before it and having regard to all its findings regarding the applicant’s circumstances prior to departing Iran and the likelihood he would experience harm if he returned, the Tribunal finds there is neither a real chance he would be seriously harmed nor a real risk he would suffer significant harm if stopped by the police or Basij in the future for similar actual or perceived infractions.
Failed asylum-seeker and returnee from a Western country
At hearing the applicant said that if the Iranian government found out he had come to Australia and sought asylum they would definitely arrest him. Asked why he thought this he said most of the people who leave Iran are political; he was approached by people on Skype who said they were against the government but he said he didn’t want any involvement. He told the Tribunal he had put many posts on Facebook and Viber. Since he got here the government would be more sensitive about him and would take him to court and do something to him or do something to him without taking him to court or kill him.
Asked why he had posted political material on Facebook the applicant said he didn’t know at the time that the Iranian government could find it. Asked what he had posted he said many posts all against the government and religion, because he hates Islam. He knows if he goes back they will put this in front of him and he will be executed.
The Tribunal explained to the applicant the provisions of s.91R(3) and the applicant said because he was tortured for so long he doesn’t think a couple of posts would be relevant to his application. He was imprisoned for three years in that country and when he got here it was like freeing a bird from its cage and it doesn’t even know.
The applicant has not provided any printouts from his Facebook or Viber accounts. He raised this for the first time towards the end of the hearing and the claim that he had posted political and religious content on social media seemed to be almost an afterthought. The Tribunal does not accept, on the very limited evidence before it, that the applicant’s has posted comments on social media critical of the Iranian Government or of Islam.
When asked at hearing whether there were any reasons he had not already talked about that would cause him to be harmed if he returned, the applicant said in Iran basically anyone can do anything they want; if you have any sort of religious problems they are going to say you are an atheist and if you have any political problems, for both of these reasons they say we have to remove you from this life. He has many problems with Iran’s policy; he doesn’t want this for himself or for his family.
In the undated submission received by the Tribunal on 25 November 2013 it was submitted that because the applicant has been seen to oppose the regime he will be viewed as a spy and a traitor for having travelled overseas and sought protection in a Western country, particularly due to the length of time he has been in Australia. It was submitted that he would be imputed with further anti-government sentiments if the Iranian government found out he had applied for asylum in Australia. The submission reproduces a lengthy extract from RRT country advice dated 19 August 2010 and cites also a number of reports relating to the treatment of known activists who had sought asylum overseas including Rahim Rostami.
The Tribunal notes that the research response quoted so extensively in submission states that “[i]t remains uncertain as to whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad.” The research response states also that “…it is unclear ... whether any of these examples of ill-treatment are attributable to political beliefs imputed by authorities due to asylum claims made while abroad.” The Tribunal accepts that some credible reports exist of individuals having been harmed following their return but as set out below, and as discussed with the applicant at hearing, considers that these relate to individuals who had a political profile for some reason.
Independent sources before the Tribunal indicate that not all failed asylum seekers are perceived as being anti-regime and/or mistreated upon their return to Iran for that reason alone, rather that those who have been harmed have had a political profile to some extent.[25] Asked if he wanted to respond to this information the applicant said maybe the other people didn’t have a strong case but he had a profile and he had problems; that’s why he is sure he will be persecuted.
[25] Department of Foreign Affairs and Trade 2013 DFAT Country Information Report – Iran 29 November p.25; Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, p.69 Department of Foreign Affairs and Trade 2011, Response to IRN 11738: Iran - Article on returned asylum seekers and people exiting Iran with false documents, 19 April; Department of Foreign Affairs and Trade 2010, Response to CIS Request No. IRN11072: Return of failed asylum seekers, 22 December

100. The Tribunal explained to the applicant that while it accepted there were some documented cases of returned asylum seekers having been harmed, these cases generally involved people with high profiles as activists either in Iran or overseas.
101. The Tribunal explained further, as noted above, that it may not accept that he had been arrested and tortured as he claimed or that he had been of any interest to the Iranian authorities before he left and if so, this may lead it to conclude he did not have a profile that would make him of interest to the government if he returned to Iran. The Tribunal explained that the country information it had considered suggested on balance that having sought asylum in Australia would not be a reason for them to take an adverse interest in him or to harm him. The applicant spoke again about his friend [Mr B] having been killed and about his [limbs] being evidence of the torture he had experienced. He said he is different from everybody else; he will die if he goes back or they will do something to cause his death or he will kill himself. As the Tribunal has found that the applicant was not arrested, detained and tortured it follows that the Tribunal does not accept on the evidence before it that the applicant has injuries to his legs sustained as a result of torture which would be apparent to the Iranian authorities on his return or cause the applicant to be viewed with suspicion.
102. In the undated submission received by the Tribunal on 4 June 2015 the representative quoted the 2012 Amnesty International report “We are ordered to crush you – Expanding repression of dissent in Iran” to the effect that “…failed asylum seekers also risk arrest if they return to Iran, particularly if forcibly returned, where their asylum application is known to the authorities.” The submission also quoted the information attributed in that report to an “unnamed judge” indicating that “Asylum seekers are interrogated on return, whether or not they have been political activists in Iran or abroad” and an Iranian newspaper report stating that failed asylum seekers could be prosecuted for making up accounts of alleged persecution.”
103. The submission cited also the RRT’s decision in 1311172 in which it was noted that while country information regarding the treatment of returned asylum-seekers to Iran was not conclusive it indicated there was seen to be “A political dimension to the act of seeking asylum”. The Tribunal acknowledges this may be the case but does not accept that in combination with any other of the accepted characteristics of the applicant that this would cause him to be imputed with a political opinion against the regime or give rise to a real chance he would be seriously harmed, or a real risk he would suffer significant harm, for that reason.
104. The Tribunal has found above that the applicant left Iran legally using his own genuine passport but accepts that the Iranian authorities may infer from the circumstances of the applicant’s return that he has sought asylum in Australia and that he may be questioned on his return. However, for the reasons set out above, the Tribunal has not accepted that the applicant has undertaken any activities in Iran that would cause him to be imputed with an anti-regime political opinion. The Tribunal has found above that the applicant does not have a political profile and is not of interest to the Iranian authorities. The Tribunal finds that if the applicant is questioned on his return to Iran this will establish that he is not of any interest to the Iranian authorities. Further, for the reasons set out below, it finds that while he may be a non-observant Muslim this would not, in itself, give rise to a real chance of serious harm or a real risk of significant harm.
105. On the evidence before it the Tribunal finds there is not a real chance that the applicant would come to the adverse attention of the Iranian authorities or be seriously harmed because of his status as a failed asylum seeker and a returnee from a Western country or his membership of the particular social groups “failed asylum-seekers” and “returnees from a Western country” if he returned to Iran, now or in the reasonably foreseeable future. Neither is the Tribunal satisfied on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk the applicant would suffer significant harm because of his status as a failed asylum-seeker and a returnee from a Western country or his membership of the particular social groups “failed asylum-seekers” and “returnees from a Western country”.
Religion
106. As noted above, the applicant claimed at hearing that he is a non-observant Muslim. He told the Tribunal he hates Islam and at another point, that he does not believe in Islam and although he said previously that he was Shia he did this only because he was scared and everyone who knows him, even his parents, would say he has no religion. He said he started researching some different religions including Baha’i and the Bible for Christianity, but he had no interest. While he has not claimed explicitly to fear harm for this reason he did state at hearing that if you have any religious problems in Iran they will think you are an atheist.
107. The Tribunal explained to the applicant that the country information indicates that many Iranians are non-observant Muslims and face no problems for this reason[26] and does not in the Tribunal’s view support the claim that being a non-observant Muslim would in itself cause a person problems.[27] The applicant said in response that there are people who actually believe in all the fictional stuff that is in Islam, or they are scared of it.
[26] Al Monitor 2013, “Iran’s Ramadan: Behind the canvas”, 30 July, /originals/2013/07/iranian-ramazan-fasting-differences.html# Accessed 30 October 2013; Landinfo 2011, Iran: Christians and Converts, 7 July, 7.1 p.15, _1.pdf Accessed 30 October 2014; Department of Foreign Affairs and Trade 2013, Country Information Report - Iran , 29 November, 3.48
[27] Ibid.; Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, p.14 The applicant has not claimed that he has ever experienced harm because he is a non-observant Muslim. On the evidence before it the Tribunal finds there is neither a real chance nor a real risk the applicant would be believed to be an atheist. Having regard to the country information cited above, the Tribunal finds there is not a real chance the applicant would be seriously harmed for reason of his actual or imputed religion or because he was believed to be an atheist. For the same reasons the Tribunal is not satisfied that there are substantial grounds for believing there is a real risk that as a necessary and foreseeable consequence of being removed from Australia to Iran the applicant would be subjected to significant harm because he is a non-observant Muslim or because he was believed to be an atheist.

Are there any other reasons the applicant may be harmed if he returned to Iran?
109. Asked at hearing if there were any reasons he had not already mentioned that he feared he would be harmed if he returned to Iran, the applicant said he had to think about it. The Tribunal noted that it would have expected him to have thought about this before coming to the hearing but suggested that he consider this further and let his representative know if there was anything further he needed to tell the Tribunal. At the time of writing no further evidence in relation to this has been submitted.
Is there a real chance the applicant would be seriously harmed if he returned to Iran?
110. The Tribunal has considered the applicant’s claims individually and cumulatively, noting in particular the overlap between the religious, civil and political spheres in Iran. The Tribunal has also taken into account the applicant’s claims to have experienced problems with his mental health and the diagnosis of mixed anxiety and depression offered by his GP. While the applicant accepts that such difficulties may make an applicant more vulnerable to harm or decrease the level or severity of the harm that might be considered serious or significant in an individual case, the Tribunal has found above for multiple separate reasons that there is not a real chance the applicant would be seriously harmed if he returned to Iran. The Tribunal has carefully considered the possible cumulative effect of the matters considered above but remains satisfied on all the evidence before it that there is not a real chance the applicant would be seriously harmed for a Convention reason or for any other reason if he returned to Iran now or in the reasonably foreseeable future. The Tribunal finds on the evidence before that that the applicant does not have a well-founded fear of persecution.
Is there a real risk the applicant would suffer significant harm if he was removed to Iran?
111. In considering s.36(2)(aa) the Tribunal has proceeded on the basis that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the context of assessment of the Refugee Convention definition following the Full Federal Court decision in MIAC v SZQRB [2013] FCAFC 33.
112. Having considered the applicant’s claims individually and cumulatively and for the same reasons set out above with respect to whether there is a real chance the applicant would be seriously harmed, the Tribunal is not satisfied on all the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk the applicant would suffer significant harm.
Conclusion
113. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
114. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
115. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
116. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Hilary Lovibond
Member

Danish Refugee Council’s fact-finding mission to Tehran, Iran, Ankara, Turkey and London, United Kingdom, 9 November to 20 November 2012 and 8 January to 9 January 2013, .nyi danmark.dk/NR/rdonlyres/A8C2C897-1CA9-49D1-BA32EC3E599D646D/0/Iranendeligudgave.pdf Accessed 12 February 2015

[2015] AATA 3975

15 October 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction