1401913 (Refugee)

[2016] AATA 4863

1401913 (Refugee) [2016] AATA 4863 (21 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401913

COUNTRY OF REFERENCE:                  Iran

MEMBER:Filip Gelev

DATE:21 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 21 April 2016 at 5:49pm

CATCHWORDS

Refugee – Protection visa – Iran – Religion – Anti-Islamic beliefs – Agnostic – Particular social group – Failed asylum seeker – Under observation by Herasat – Harassed by relative – Witness credibility

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made 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).

2. The applicant who claims to be a citizen of Iran, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] January 2014.

3. The applicant appeared before the Tribunal on 9 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.   

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

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, 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

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 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).

7. 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.

8. 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.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    COUNTRY OF REFERENCE

21. Based on the applicant’s oral and written evidence and copies of his national ID card, Operator Permit Certificate and IAC Card, originals of which were provided to the Department of Immigration, and in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a national of Iran and has assessed his claims accordingly for the purposes of ss.36(2)(a) and (aa).

22. The Tribunal further finds that the applicant’s identity is as claimed.

    Claims

23. The applicant’s claims for protection are set out in statutory declaration, dated [December] 2012.

24. The applicant said that he feared going back to Iran, because he is agnostic and for as long as he can remember he has rejected Islam. He has never voluntarily practised the religion in Iran. He was forced to attend some prayers while at school and during his military service, but he tried his best to avoid it. He was forced to attend prayers, rallies and observe Ramadan.

25. Despite stating that he is agnostic, he also said that he found Islam “constrictive” and he was against organised religion as long as he can talk to God.

26. The applicant claimed that his problems started around 2003, the year he moved to Tehran to live with his aunt [Ms A]. His parents had died when he was young and he lived with members of his extended family. [Ms A]’s husband, [Mr B], was a very religious man, who forced Islam onto his children. He would wake up his children and the applicant before sunrise to pray. They were made to observe religious customs such as on days commemorating the death of the prophets of Shia Islam. The uncle and the applicant would often get into violent arguments and [Mr B] would throw the applicant out of home or the applicant would leave in disgust. [Ms A] would intervene to allow the applicant to remain in, or return to, the house.

27. According to the applicant’s answers at entry interview, held on [date] June 2012, when the applicant was asked whether the police and security or intelligence organisations impacted on his day to day life, he said:

    They were harassing me for the way I was dressed, having long hair and having stretched t shirt that I was wearing. Other harassment I experienced was with my girlfriend, in the park lands they harassed us and when I was with a group with my friends they said why did you get together, why did you laugh.

28. According to the 2012 statutory declaration, in or about August 2009 the applicant commenced work with [Organisation 1].

29. At interview with the delegate of the Minister for Immigration, the applicant was asked why if he already had a job with his cousin at the bazaar, he chose to get a second job at [Organisation 1]. He replied that it is “important” to have a kind of fixed job, to work for the government; it gives one “kind of credit”.

30. According to the statutory declaration, in or about August 2010 the applicant chose not to fast during Ramadan. He tried to keep it a secret, but someone must have seen him and reported him to the [Organisation 1] security service (Herasat in Farsi means vigilance. It is part of the Iranian government and responsible for the enforcement of Islamic codes).[1]

    [1] “Significance of the word “Herasat” printed on a seal of summons, IRN41283.E”, Immigration and Refugee Board of Canada, 16 April 2003, accessed at  on 08 February 2016.

31. Herasat called him into a room and questioned him. He was told that if he was suspected of breaking the rules of Ramadan again, he would be reported to senior management. The applicant said in his statutory declaration he thought if this happened, he would have lost his job and could have faced criminal penalties such as imprisonment and lashings.

32. The applicant refused to attend prayers during Ramadan (the statutory declaration does not specify in what year) and his conduct was noticed; he was reported to management.

33. In or about September 2010, toward the end of the month of Ramadan of that year, the applicant was summoned to see one of the managers called [Mr C]. He asked the applicant about all his personal details. The applicant told him where he lived and with whom. It turned out that this man knew the applicant’s uncle, who was a very successful businessman. [Mr C] “reported” the applicant to his uncle.

34. In or about April 2011 [Mr B] forced the applicant to go on a pilgrimage to [Country 1]. If the applicant had refused, he would have been kicked out of home and would not have had a place to live.

35. In or about July 2011 [Mr C] told the applicant that he had been reported to the national office of the Herasat. The applicant’s shift manager [told] the applicant he had to report to a Herasat officer by the name of [Mr D]. [Mr D] was also an officer in the Sepah.[2]

    [2] Sepah or Sepah-e pasdaran-e enqelab-e eslami is generally known in English as the the Islamic Revolutionary Guards Corps “, see A.P. Ostovar, “Guardians of the Islamic Revolution Ideology, Politics, and the Development of Military Power in Iran (1979–2009)” , Ph.D. thesis published at the Univesity of Michigan, 2009, accessed at on 8 February 2016.

36. At the first meeting [Mr D] spoke with the applicant for about half an hour in a friendly tone but made it clear that the applicant had been under observation since he started work and it had been noticed that he was not following the tenets of Shia Islam.

37. At a second meeting in or about August 2011 [Mr D] “interrogated” the applicant for about an hour. He told the applicant it had been noticed that he had not changed his ways and the applicant was now considered a mohareb or enemy of God.

38. He asked the applicant about his parents and the applicant’s belief system. He told the applicant they had built a file against him by talking to neighbours and other shop keepers at the bazaar where he worked.

39. After this meeting, the applicant sought advice from his friend, [whom] the applicant knew from the bazaar, about what to do. [His friend] told the applicant to leave Iran before his problems got worse.

40. The applicant needed to save money to leave Iran and he had to keep a low profile – he does not explain in the statutory declaration what he means by that. He was “not himself” during this time.

41. In or about April 2012 the applicant’s uncle [Mr B] was contacted by the Herasat, who had been asking questions about the applicant. [Mr B] told the applicant that if he was not a good Muslim, it was [Mr B]’s duty to report him.

42. On or about [May] 2012, the applicant left Iran for Australia.

43. At interview with the delegate, the applicant said that he lived with his brother and the brother’s family for two or three years while in high school. However, they were living in Sabzevar and the applicant decided to go back to Tehran, because it offered better employment opportunities.

44. At the hearing, the Tribunal the applicant confirmed that he sometimes had long hair in Iran. He said in Australia he had to change it, because it is too warm. Towards the end of the hearing, the Tribunal noted that the photo of the applicant on his [Organisation 1] ID card he had rather long hair. He said that was true. He said he had indeed cut his hair in Australia, but had to cut his hair in Iran. Herasat had asked him to do that, but he could not recall exactly when it had happened.

45. The Tribunal noted that the applicant claimed to be someone who is agnostic, or who rejects organised religion. He said he did not use the word agnostic. He believes in God, but not in organised religion. The Tribunal asked the applicant what and who he imagines God to be. He said that it’s a force or power; something that is inside people’s psyche.

46. When asked whether he believes that God created the universe and people, he said he did. When asked if sometimes he prays or talks to God, for example, when he’s going through a difficult time in his life, he answered in the affirmative.

47. The Tribunal asked the applicant whether he can imagine practising Islam in Australia where it is not forced upon people in the way that it is in Iran. He said he did not. He was against religion and in his opinion most wars in the world are started because of religion.

48. When asked what the source of his morality are, whether he follows any rules such as not stealing, not lying and so on, he said that it comes from inside him. It is not nice to lie to people or to steal from people; he tries to be nice and live his life. He said you never know when you may die.

49. The applicant confirmed that before coming to Australia he was living with his aunt [Ms A] and his uncle [Mr B].

50. The applicant said that prior to living with his aunt and uncle, he was living with his brother in Sabzevar. His parents divorced when he was young and he did not see his father much. When his mother died, his brother married and the applicant started living with him in Sabzevar. The applicant said that prior to this he also lived with his brother’s wife’s father in a small [town].

51. The applicant was asked whether in Tehran he could live with someone else and he said he could not. He could not live by himself. He could not live with his brother. He said he has not talked with his brother for over a year, because his brother is a committed Muslim and does not like the fact that the applicant came to Australia.

52. He was asked to elaborate on his claim that he could not live by himself. He said generally it’s really hard for an unmarried person to get accommodation in Iran. He also said that without a financial guarantor it would also be hard. Then he said that it was not financial hardship that prevented him from finding accommodation. He said that he has been living in Australia for 3 years now. He started talking about the fact that he did not have a passport on which to travel back to Iran.

53. The Tribunal invited the applicant to imagine that he can return to Iran and not have any problems at the border; that he is allowed to re-enter the country. He said that if this happened, he will have problems with his uncle. When asked why his uncle needs to know anything about the applicant’s return, he said his uncle was the one who dobbed him in to the authorities. He said his uncle will eventually find out that the applicant has returned to Iran. For example, if the applicant calls his cousin, the uncle will find out. The uncle had already stopped the applicant’s cousin from sending documents to the applicant in Australia (e.g. the applicant’s birth certificate).

54. The applicant said that [Mr B]’s sons are [Mr E], [Mr F] and [Mr G]. [Mr E] was the one running a shop at the bazaar. He started working there after his military service. The shop was selling [spare] parts, mainly for [certain goods]. When asked how many hours he worked at the shop, he said at [Organisation 1] he worked shifts. He would do a day shift, rest for 24 or 48 hours and then do a night shift. When he was on a night shift at [Organisation 1], he could get some sleep. He said that he would work at the shop whenever he was not working day shifts at [Organisation 1].

1. At [Organisation 1] he was originally working [in a certain role] and then, after doing a course, he moved to become a driver. He was earning between [amount] – [amount] Tomans and at the shop he was making [approximately half that amount in] Tomans.

2. The applicant was invited to describe his life with his uncle. The applicant said that when he first started living there, after a while he realised that his uncle would wake him up every day to force him to say prayers. If the applicant refused to say his prayers early in the morning, the uncle would say bad things to him such as “you’re not a good Muslim” or “you will mislead my children”. Sometime his aunt would intervene in the middle of an argument and sometimes the applicant would leave the house.

3. When asked how often they had arguments, the applicant said that he tried his best to avoid it, but they would argue at least once or twice a day. He claimed that the arguments were more frequent during holy months such as Ramadan and Muharram. He said that he would get up in the morning, but he would not say the prayer. In the evening he was more successful avoiding his uncle.

4. The Tribunal asked whether the applicant’s cousins – [Mr B]’s sons – were religious, whether they are more like him or more like their father [Mr B]. The applicant said that his sons were like the applicant and did not like having to get up in the morning. Sometimes they argued with [Mr B] as well.

5. When asked whether his uncle ever threatened to evict the applicant, he said that did not actually happen, but then he said that his uncle would say “I’ll kick you out” or “you’re a bad example for my children”.

6. The applicant said that the argument never really became physical because his aunt would intervene; all the arguments were verbal.

7. The applicant said that [Mr E] still lives with his parents, even though he is in his [age bracket] s, because he is not married. He said that as far as he knows [Mr E] still runs the shop, although he is not in touch with him. He is more in touch with [Mr G], one of the younger cousins.

8. The Tribunal told the applicant that at interview with the delegate he was asked why if he already had a job with his cousin at the bazaar, he chose to get a second job at [Organisation 1]. He replied:

   Because it’s very important in Iran to have a kind of fixed job, working for government. It gives you kind of credit… I thought it was better for me to have this kind of formal employment.

9. The applicant said that was correct. In Iran, if you have a job with the government, you have insurance. When asked what insurance it was, he said subsidised medical care and income in retirement.

10. The applicant said that his uncle helped him get the job at [Organisation 1]. The uncle knew someone and the applicant was interviewed. He was asked if he was a Shia Muslim. He was asked about his work history, his address.

11. The applicant said he lied about his religion, because it was important to get the job. The Tribunal questioned the applicant’s anti-religious views. The Tribunal suggested that he lied in order to obtain a financial benefit, when he already had another job. The applicant said that people would kill to get this job.

12. He was invited to discuss his problems in Iran. He said at the beginning he would sit around and chat about things such as religion. Everyone would express their views and he would do the same. He told them that if religion did not exist, everyone would live together peacefully and there would not be major problems. After some time, some colleagues reported him and he started to have problems.

13. He then said the first time he had a problem was during Ramadan when someone saw that he was not fasting. Herasat invited him to a meeting where they asked why he was eating publicly. They said that if he continued to do so, he would be reported to the general manager. It happened again and he was questioned again. One day his [supervisor] told him that the manager [Mr C] wanted to see him. [Mr C] asked the applicant personal questions such as his name, where he lives, and who he lives with. The applicant had to give his uncle’s name. The manager was surprised that the applicant lived with a man, who is so pious. It turned out that the manager knew [Mr B] and what sort of person [Mr B] was.

14. He told the applicant that he needs to watch his behaviour and he needs to be careful. He informed the applicant’s uncle of what had happened. When the uncle learned about this he said to the applicant: “How could you do such a thing? You’re playing with my dignity!” He and the applicant had another argument.

15. The applicant said that subsequently “they” ([Mr B], [Mr B]’s wife and another one of the applicant’s aunts) organised a trip to [Country 1] in the hope that it would make the applicant more religious. He said that his cousins did not go to [Country 1]. When the Tribunal asked whether his cousins – [Mr B]’s sons – also had to go, he said that they did not. He said that they pretended to be pious to their father. When the Tribunal pointed out that he had earlier said his cousins also argued with [Mr B] about religion, he said that was true, but sometimes they would pretend to go on a pilgrimage by themselves, then go on a [holiday].

16. The applicant said that he did not hate the trip to [Country 1], but he felt that he wasted his holiday leave on a trip he did not want to go to. When the Tribunal asked what threats or leverage the uncle had used to force him to go, he said that everything had been organised, he had spoken with the manager [Mr C], the applicant’s aunt also said that it was a good idea to go. When asked what his uncle might have done if the applicant refused to go, he said that he did not know. After hesitating for some time, he speculated that the uncle may have become physical.  

17. The applicant said that after returning from the trip to [Country 1] he was reported to the national office of Herasat. They had observed that he did not attend religious gatherings such as going to mosque on Friday. The Tribunal asked whether he was claiming that in the previous two years since he started work with that employer nobody had noticed his non-attendance at the mosque. He said that after working at [Organisation 1] for a while on a contract, they were looking at him more closely before they could decide whether to make him a permanent employee.

18. The applicant was asked whether he was reported for any other reason and he said yes, he was also reported for expressing his views on religion to other employees.

19. The Tribunal expressed its surprise that it had taken this long before any action was taken against him, considering that he was already having problems by August 2010, yet he was not summoned to Herasat until 2011. He said that sometime he would go to mosque and pretend. He said the main reason he was called in by Herasat was because he had denounced Islam.

20. The Tribunal asked why he would denounce Islam, knowing the problems that would cause; and secondly, why it took Herasat two years to take him into their national office. He said that he was discussing such things with co-workers who were friendly. Some of them would say exactly the same things as him. He said he did not know why the Herasat took so long to bring him in. He said that perhaps they were “monitoring him”. The Tribunal asked what there was to monitor about him. He said that after the second time he was called in by Herasat they started sending other people to accompany him around, at work.

21. The Tribunal asked why they would send someone to accompany him, what would be the purpose. He said that perhaps they needed to gather evidence against him. The Tribunal pointed out that he had already openly expressed his views against religion and that he was not eating during Ramadan. He said that maybe they did not have enough evidence against him. The Tribunal observed that according to his own evidence, he had been talking against Islam since 2009 and he had a reputation already. He said he did not know what else to say.  

22. He confirmed that at the first meeting with Mr [D] at Herasat he was told that they had spoken with his neighbours and people at the bazaar and they had built a file against him. The Tribunal asked whether he was claiming that what Herasat could find from his work at [Organisation 1] was not enough to build a case against him. He said that he did not know why. Perhaps they were trying to find out if he “behaved” in the same way outside of work. The Tribunal pointed out that if he was expressing his views against Islam, he would also be holding such views at home and at the bazaar. He repeated that perhaps they wanted a more solid case against him.

23. The applicant said that for 6-8 months before he left Iran he was keeping a low profile as claimed in his statutory declaration. He said that he went to religious gatherings and pretended to be pious.

24. When asked whether he had any other problems because of his religious views, he said that [Ms A] was the only aunt who could tolerate him. His other aunt and even his grandmother did not.

25. The applicant said that shortly before he left the country the Herasat called his uncle as claimed in his statutory declaration. He said that his uncle told them that the applicant had not changed. The Tribunal pointed out that earlier the applicant had claimed that he had changed and kept a low profile. He said that he changed his behaviour at work, but at home he had not changed.

26. The Tribunal was asked why he had not mentioned his work problems at the entry interview (as pointed out by the delegate in the decision, a copy of which was provided with the application for review). He said that he did not expect all these interviews, he was also fearful. The Tribunal noted that he was asked at entry interview to be specific about his problems and he referred to financial and personal problems and to relatives looking at him with pity. He said that when he arrived he still had the mentality that he had in Iran and he did not want to put himself at risk.

27. The Tribunal raised the applicant’s credibility as an issue: he did not mention the claims which form the basis of his application at entry interview; he held a government job for two and a half years and he was not arrested or harmed but only asked questions from 2009 to 2012; the fact that he was happy to lie about his religious views to obtain a benefit (the government job); country information which indicates that the vast majority of people especially in Tehran do not go to mosque even once a week;[3] and the fact that he went on a religious pilgrimage to [Country 1]. He said at the time of the entry interview he was still worried that things he says may become known to the authorities in Iran. In relation to the low mosque attendance in Tehran, he said that all these other people are fine, because they are not under surveillance, whereas he is. He did not specifically answer the other matters raised by the Tribunal at the hearing, but his representative sought to address them in post-hearing submissions of 9 March 2016.

    [3] One average in Iran less than 30% go to mosque at least once a week, and less than 20% in cities of over 100,000; in Tehran, the figure is 6%: G.M. Tezcur, T. Azadarmaki and M. Bahar, “Religious Participation among Muslims: Iranian Exceptionalism”, Critique: Critical Middle Eastern Studies, vol. 15, No 3, pp. 217-232, Fall 2006, at pp. 221, 225 and 226.

28. The Tribunal said that it had to consider whether he was telling the truth or whether he decided that he had to come up with a “bigger story” because after the entry interview he realised this would not be enough to get him a visa. He said he was telling the truth. He said everyone in his situation was fearful of returning to Iran.

29. The Tribunal said that it considered that if the applicant was not considered loyal enough he would have just been fired from his job; or, if he were in fact considered dangerous, they would have arrested him. He said that in Iran they investigate people carefully before arresting them. The Tribunal pointed out that he was in that job for some two and a half years before coming to Australia and he had allegedly been expressing his views from the start. He conceded that was true.

30. The applicant has always acknowledged, including at the Tribunal hearing, that he had obtained a genuine passport and departed Iran by the usual, legal channels. However, the Tribunal acknowledges that he does not have a passport or travel document anymore.

31. In relation to returnees or failed asylum seekers, the Tribunal advised the applicant that it has had regard to various sources of country information. First, DFAT’s assessment was as follows (at 5.24):

    5.24  DFAT is not aware of any studies concerning the treatment of voluntary or involuntary returnees. A voluntary returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians.

32. On 21 April 2016 DFAT issued a new Country Information Report which provides a slightly more nuanced view (at paragraph 5.34):

    …Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.

33. Based on numerous other sources, even prior to the publication of the new DFAT Country Information Report, the Tribunal advised the applicant at the hearing  it accepts that in order to return to Iran, the applicant will either have to approach the Iranian authorities for a travel document or be deported against his will. In either case, the Iranian authorities would have a reasonable suspicion that the applicant may have sought asylum in Australia. In the absence of a travel document, it is virtually impossible to return to Iran and avoid the attention of the authorities. The DFAT advice is much more relevant to asylum seekers who return to Iran on the same travel document on which they exited the country.

34. The Tribunal told the applicant that it accepts that the applicant may be asked questions in Australia at the time when his departure is being organised or upon his return to Iran or both. It told the applicant that it would assess the applicant’s case on the basis that he may be stopped and interviewed.

35. However, the Tribunal noted that as of August 2014 it was reported that a total of 773 Iranian asylum seekers had returned from Australia, Manus Island and Nauru to Iran in less than a year, that is, in the period September 2013 to July 2014. There have been no reports of any harm inflicted on any of these returnees.[4]

    [4] ‘Millions spent on ‘voluntary return’ of asylum seekers’, 5 August 2014, Australian Lawyers Alliance, accessed at on 30 June 2015.

36. The Tribunal referred to a more recent report by an Azeri newsagency, Iran has granted permission to Iranian asylum seekers in Australia to return home to Iran.[5]

    [5] ‘Tehran allows Iranian asylum seekers in Australia to return home - envoy’, Trend News Agency, 3 November 2015, accessed at on 1 February 2016.

37. The Tribunal discussed with the applicant two articles from August 2015 published in the Guardian newspaper. Papua New Guinea had forcibly returned two asylum seekers. On return to Iran they were forced to “surrender” their travel documents and report to police. Other conditions or possible sanctions were unknown.[6],[7]

    [6] B. Doherty, ‘Papua New Guinea Supreme Court halts asylum seeker deportations’,  The Guardian, 25 August 2015, accessed at on 1 February 2016.

    [7] B. Doherty and C. Wahlquist,  ‘Asylum seeker on Manus forcibly returned to Iran amid court challenge’, The Guardian, 21 August 2015, accessed at on 1 February 2016.

38. The Tribunal said it accepted that people with a known profile do face a real chance of persecution. However, based on the country information before it, it considers that the authorities are likely to check his history and conduct and if he did not have a profile before leaving Iran and he has not engaged in any political activities outside of Iran, he would not face problems that would amount to serious harm. He would be asked questions and may have his passport seized, but that would be the end of the matter.

39. The applicant said that as the Tribunal had said he does not have a passport. On return he would be asked how or why he left, what happened to his passport, what was his problem, he may be asked about his religion. And then – the applicant started speaking in English – “many problem” or “much problem” if they know that he is against religion. He said that he may be executed when they find out that he is against God (Mohareb).

40. When asked whether he had any other fears, he said he feared harm from his uncle and also his brother, because they had not spoken for a long time. He was asked what he meant, he said his brother may beat him up.

    Well-founded fear of persecution

41. The Tribunal found that the applicant was not a witness of truth. For the reasons that follow, the Tribunal finds that he fabricated all his claims of past harm and made up his “religious” views.

42. The applicant’s main claim was that he was harmed in the past, because while working at [Organisation 1] he talked about religion (against Islam) to his colleagues, he did not fast and did not observe Ramadan.

43. The applicant claimed that he was an agnostic, but then told the Tribunal that he believed in God. He said he was against organised religion. However, he himself acknowledged that even though he already had a job at the market, he attended an interview for a job at [Organisation 1] and he did not see anything wrong in saying his potential employer that he believed in Shia Islam. When asked about this matter at the hearing, he said that people would kill for this job.

44. The Tribunal notes that if the applicant was prepared to “play the game” in order to get the job and he was trying to hide the fact that he was eating/drinking during Ramadan,[8] it makes no sense that from the start of his employment he would talk against Islam thus risking losing his job. The Tribunal found the applicant’s claim that he consciously spoke against Islam to be implausible given how keen he was to be employed at [Organisation 1]. As he said to the Tribunal – people would kill to get such a job. If the investigation and gathering of material against the applicant took almost three years – from August 2009 until April 2012 – the applicant could have easily avoided all these problems by quitting this job and continuing as a self-employed person at the market.

    [8] See paragraph 10 of the 2012 statutory declaration.

45. The applicant claims that from the start of his employment he openly spoke against Islam. He also claimed that it was only during the last six to eight months of his employment that he went to mosque and pretended to be pious. He found that extremely hard to do. The Tribunal does not accept the claim that the applicant’s open discussions of religion and his absence from prayer sessions would not have brought him to the adverse attention of his employer immediately, given that he was working for a government employer where people took notice of his views and prayer attendance. The Tribunal finds the applicant never discussed religion openly, nor was he absent from prayers. The Tribunal therefore does not accept the explanation provided in the post-hearing submissions of 9 March 2016:

    As Ramadan falls annually it is unlikely that the applicant’s eating habits would have been brought to the attention of Herasat until Ramadan from August 11 2010 and thus be visually rejected Islam in the workplace.

100.   The Tribunal points out one contradiction in the applicant’s claims. While he was allegedly openly discussing his religious views and was “refusing” to attend prayers, yet for some reason he was trying to keep the fact that he was breaking the Ramadan fast a secret.[9]

[9] At paragraph 10 of 2012 statutory declaration.

101.   There was another implausible aspect of the applicant’s claims. Herasat had reported the applicant to his uncle back in September 2010 and the uncle was clearly concerned and angry. He had forced the applicant to go to a pilgrimage in April 2011 and it was evident that his uncle would not only not protect him from the authorities, but would in fact turn against the applicant. The applicant said in his statutory declaration that for the last six to eight months before he left Iran he did what he could to “keep a low profile to avoid bringing attention” to himself. He was scared that he may be caught again and sentenced to death. Yet, for some unexplained reason the applicant did not change his ways at home.

102.   The applicant did not claim that he felt compelled to continue in his job at [Organisation 1] in order to “proselytise” his anti-religious views. One explanation was that he had no choice but to stay because he wanted to save enough money to leave the country. Therefore, he was forced to keep a low profile and avoid bringing attention to himself. However, when asked at the hearing about this, he said that he wanted the job at [Organisation 1], because it gave him access to free health insurance and to a pension in retirement; it was the type of job that  people in Iran would kill for.

103.   The Tribunal finds that the applicant’s long hair is an important detail. The Tribunal asked early on at the hearing about the applicant’s hair and he said that he cut it short after arriving in Australia, because the climate was too hot. Towards the end of the hearing, the Tribunal suggested that the applicant had long hair in the photograph used for his work ID card at the [Organisation 1]. The applicant then said, for the first time, that he had been forced to cut his hair short in Iran; before he came to Australia it had grown back. The Tribunal considers that this is another fabrication. The Tribunal considers that if his employer had a problem with his long hair, he would have been forced to cut it before he commenced his employment; or at the very least he would have been forced to keep it short once he cut it. He would not have been allowed to grow it long again. While this is a rather minor detail, it adds to the general picture of the applicant as someone who managed to obtain an excellent job at  [Organisation 1] and who was allowed to keep his “Western” style long hair.

104.   The applicant was unable to explain why he would have been followed around [Organisation 1] or why Herasat would have spoken to neighbours or people at the bazaar about him, if he openly and regularly expressed anti-Islamic views at work, and he did not pray and he did not fast during Ramadan. The Tribunal suggested to the applicant that his employer could have terminated his employment contract or could have had him charged with criminal offences. The Tribunal does not accept the claims that he was under surveillance at work or that the Herasat investigated him by speaking to his neighbours or to people at the bazaar or anybody else.

105.   The Tribunal does not accept that the security services, whose job it was to investigate the applicant, did not know that he was related to his uncle, even though his uncle had helped him get a job at [Organisation 1]. And that instead of punishing the applicant formally in its capacity as its employer, it “repprted” him to his uncle – which in turn led the uncle to “punish” him by forcing him to go to [Country 1].

106.   The Tribunal said that his uncle had forced him to go on a pilgrimage to Iraq. The Tribunal finds that far-fetched. If the applicant was not interested in Islam and was arguing constantly with his uncle about religion constantly, it is implausible that the applicant’s uncle would have forced him to go on a religious pilgrimage. The Tribunal considers that it would have only ruined the uncle’s spiritual experience as the applicant would have been highly likely to complain about being forced to go against his will. The Tribunal finds that once the applicant mentioned at entry interview that he went on a pilgrimage trip to [Country 1], he then had to somehow explain it away. As a result he made up the claim that his uncle had forced him to go.  

107.   The applicant has given confused evidence about his religions view. At entry interview he said he did not believe in God. At the Tribunal hearing he said he was not an atheist. He also said he did not like to use the word agnostic to describe his views. The Oxford Dictionary online defines agnostic as “a person who believes that nothing is known or can be known of the existence or nature of God”. The applicant, according to his own evidence at the hearing does believe in God, but he is against religion, and Islam in particular. The applicant did not claim that in Australia he has engaged in any activities that would cause the authorities to impute the applicant with Mohareb, that is, enmity against God. He claimed that the authorities already know about his activities in Iran and they would also know that he has been to Australia. But in Australia he has not been spreading anti-religious views.

108.   Because of all the credibility concerns the Tribunal has, as set out above, it finds that he is not an atheist, nor an agnostic. The Tribunal finds that the applicant was in fact more pious than the great majority of Tehranians and he did observe Ramadan, prayed and did not express any anti-religious views. That explains why he went on a pilgrimage to Iraq.

109.   The delegate in her decision (a copy of the reasons was provided together with the application for a review) found it concerning that the applicant did not mention the problems he had with Herasat or his uncle.

110.   The Tribunal is mindful that it should not place too much weight on what was said (or in this case, what was not said) at entry interview. In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (4 July 2014) the Full Bench of the Federal Court (North, Bromberg and Mortimer JJ) said (at [56]):

…[S]ome caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

111.   Having carefully considered all the evidence and in light of all the credibility concerns the Tribunal has in relation to the claims involving Herasat, the Tribunal finds that the reason why these claims were not mentioned at entry interview is because they are a subsequent fabrication. While the applicant may have feared that his claims may become known to the authorities, the Tribunal is not satisfied that the applicant would have failed to mention that he had difficulties at home, with his religious uncle or brother, and very significant problems with his employer.

112.   The Tribunal rejects the applicant’s claims in their entirety. The Tribunal finds that the applicant has never had any problems in Iran with his uncle, his brother or any other relatives, he has never had any problems with the authorities at work or outside of work for reasons of his appearance or for any other reason, such as being with a girlfriend or having too much fun with friends (claims made at entry interview rather than in the statutory declaration of 2012).

113.   The Tribunal finds that the applicant worked at [Organisation 1] from 2009 until shortly before he left for Australia in 2012 without any problems. He prayed, he said nothing against Islam, he did not eat during the day in the month of Ramadan and he was never suspected of any anti-religious or anti-government views.

114.    In relation to the risk that the applicant will face on return as a returnee or a failed asylum seeker or a person who has spent time in a Western country, the Tribunal has had regard to relevant country information, including the most recent DFAT report  on Iran (21 April 2016).

115.   As noted above, the Tribunal discussed with the applicant the fact that according to reports a total of 773 Iranian asylum seekers had returned from Australia, Manus Island and Nauru to in 2013-2014; and there have been no reports of any harm inflicted on any of these returnees;[10] and a report by an Azeri newsagency, that Iran has granted permission to Iranian asylum seekers in Australia to return home.[11]

[10] ‘Millions spent on ‘voluntary return’ of asylum seekers’, 5 August 2014, Australian Lawyers Alliance, accessed at on 30 June 2015.

[11] ‘Tehran allows Iranian asylum seekers in Australia to return home - envoy’, Trend News Agency, 3 November 2015, accessed at on 1 February 2016.

116.   Other country information, such as a paper by the Swiss Refugee Council (SRC)[12] and relatively recent articles in the Guardian newspaper indicate that a returnee will be stopped, asked questions, may have to “surrender” their travel document and report to police.[13],[14]

[12] Organisation Suisse d’aide aux refugiés; website The report is available in French at It was translated into English by the Tribunal: F. Kuthan, “Iran: Treatment of Rejected Asylum Seekers”, 18 August 2011.

[13] B. Doherty, ‘Papua New Guinea Supreme Court halts asylum seeker deportations’,  The Guardian, 25 August 2015, accessed at on 1 February 2016.

[14] B. Doherty and C. Wahlquist,  ‘Asylum seeker on Manus forcibly returned to Iran amid court challenge’, The Guardian, 21 August 2015, accessed at on 1 February 2016.

117. The Tribunal does not consider that questioning or confiscating the applicant’s travel document on return constitutes serious harm capable of amounting to persecution. In reaching this view the Tribunal has had regard to s.91R and the relevant PAM3 Guidelines.

118.   Therefore, having carefully weighed up the available country information, the Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of his being a returnee, a failed asylum seeker, a person who has been outside of Iran or in a Western country for a prolonged period of time, or any combination of these circumstances.

119.   As the Tribunal has not accepted that the applicant is genuinely committed to atheist/agnostic/anti-Islamic beliefs, the Tribunal does not accept that the applicant would upon return to Iran do or say anything that would cause the authorities to impute him with such religion views. The Tribunal further finds that the applicant will not be forced to modify his behaviour in any way or hide his political or religious views on return.  

120.   The Tribunal does not accept there to be a real chance that the applicant will do anything that cause him to be viewed as or perceived to be a person who has rejected Islam. It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution on the basis of actual or imputed atheist/agnostic/anti-Islamic beliefs if he returns to Iran, now or in the reasonably foreseeable future. 

121.   The Tribunal has considered the submission that his lack of belief in Islam means that he will be viewed as a political dissident in Iran. The Tribunal does not accept that the applicant is a non-practicing Muslim and that is why he travelled to [Country 1] on a pilgrimage. The Tribunal does not accept there to be a real chance that the applicant will be targeted for serious harm for that reason if he returns to Iran, now or in the foreseeable future.  

122.   For the same reasons the Tribunal does not accept that there to be a real chance that the applicant will be imputed with a political opinion that is against the Iranian regime and harmed on that basis because he does not practise Islam if he returns to Iran, now or in the foreseeable future. 

123.   The Tribunal finds that the applicant was never threatened or harmed by his uncle and he can return to live with his uncle and cousins. He does not face any harm from any member of his family, including his uncle and his brother, now or in the reasonably foreseeable future.

124.   Having considered the applicant’s claims cumulatively as well as individually, the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of religion, political opinion or any Convention reason if he returns to Iran, now or in the reasonably foreseeable future.

Complementary protection

125. In considering whether the applicant faces a real risk of significant harm for the purposes of the complementary protection criteria, the Tribunal notes that ‘significant harm’ 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.

126.   In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[15]  It follows that the Tribunal does not accept that there is a real risk that the applicant will face significant harm on any of these bases as a necessary and foreseeable consequence of his being removed from Australia to Iran. 

[15] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

127.   Having regard to the Tribunal’s findings, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm from the Iranian authorities or any other person, including the applicant’s uncle and brother.

128.   Specifically, the Tribunal finds that The Tribunal does not consider that questioning or confiscating the applicant’s travel document on return constitutes significant harm.

129. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

Conclusions

130. 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).

131. 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).

132. 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

133.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Filip Gelev
Member