1502679 (Refugee)

1502679 (Refugee) [2016] AATA 4869 (25 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1502679
COUNTRY OF REFERENCE:                  Iran
MEMBER:Frances Simmons
DATE:25 August 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 25 August 2016 at 5.15pm
CATCHWORDS
Refugee – Protection visa – Iran – Ethnicity – Arab – Particular social group – Failed asylum seeker – Imputed political opinion – Disillusionment with current regime – Harassment by Basij militia – Fear of prosecution for adultery – Fear of harm due to extra-marital relationship – Fear of harm due to Western lifestyle – Witness credibility
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 is a citizen of Iran, travelled to Australia [in] August 2014 on a sponsored family visitor visa that was granted offshore [in] July 2014 and which was in effect until [November] 2014. The applicant applied for a protection visa [in] October 2014 and the delegate refused to grant the visa [in] February 2015.
The applicant appeared before the Tribunal on 19 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [brother]. 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.
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Iran for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Iran, there is a real risk he will suffer significant harm.
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. In assessing the applicant’s claims the Tribunal has had regard to the DFAT Country Information Report on Iran published on 21 April 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
Application to the Department
The applicant’s protection visa application states he left Iran ‘due to the persecution and or serious harm that I had been subjected to’. He claims that he was ‘subjected to serious or significant mistreatment’ due to his Arab ethnicity. Asked if he had experienced harm in Iran, the applicant said that he had been subjected to ongoing threats of serious harm or mistreatment on the basis of his ethnicity and his freedom and liberty have been severely restricted. He claimed that if he returned he could not openly live a western lifestyle and he would have his freedom severely restricted. He would be subjected to disproportionate mistreatment on the basis of his Arab ethnicity.
In response to the question who will harm/mistreat you if go back, the applicant said Iranian authorities and conservative religious leaders. He believes this will happen to him because he is ‘an ethnic arab’ and wishes to live a western lifestyle. He has been subjected to threats of serious or significant harm and his freedom has been significantly constrained by the Iranian authorities. The Iranian authorities will not act to protect him as they have been the perpetrators of threats of significant or serious harm. While the applicant indicated that ‘a detailed statement’ would be submitted ‘in due course’, no such statement was provided to the Department.
The applicant attended an interview with the delegate [in] January 2015 where he was questioned about his claims and circumstances. I have listened to an audio recording of this interview. At the interview the applicant gave evidence that he had travelled to [Country 1] multiple times between 2012 and 2014.[1] The applicant told the delegate that his father was [a Country 1] citizen and his mother is now an Iranian citizen. He stated he was born in Iran but he did not acquire Iranian citizenship until 2010 and that, as part of this process, he had to renounce his [Country 1] citizenship and his [Country 1] passport was destroyed.
[1] Tribunal file, delegate’s decision, p.2, folio13.
After the interview, the applicant ‘s representative sent ten photographs to the delegate depicting various people in western styles of dress or with tattoos being handled by those in positions of authority.
The delegate accepted that the applicant was a citizen of Iran and no other country. The delegate found that until the applicant became an Iranian citizen in 2010 he was considered to be [a Country 1] citizen. The delegate noted that dual citizenship is not recognised in Iran. The delegate accepted that in 2010 he was issued with an Iranian passport and birth certificate which is in accordance with the citizenship laws of Iran. The delegate did not accept that the non-issuance of an Iranian birth certificate to the applicant until he became an Iranian citizen in 2010 was discriminatory.
The delegate made the following findings of fact.
a.    The applicant is a single Iranian of Arab ethnicity from Tehran in Iran.
b.    The applicant was not issued an Iranian birth certificate until 2010 when he became a citizen in accordance with the citizenship laws of Iran.
c.    The applicant has been subjected to low level verbal discrimination in Iran due to his Arab ethnicity.
d.    The applicant was born into a Muslim family in Iran and is a practising moderate Shia Muslim.
e.    The applicant has a low level political opinion opposing the regime.
f.      The applicant wishes to live a westernised lifestyle if he returns to Iran.
The delegate noted that even without an Iranian birth certificate the applicant had completed secondary education and made a [career]. The delegate noted that when the applicant was asked whether he had ever been involved in any political activities in Iran he indicated he was not interested in politics, however he did not agree with the regime. Asked to explain his views, he stated it was not possible to disagree with the regime in Iran. The delegate considered that while the applicant might be dissatisfied with the political regime in Iran she was satisfied that he did not have an interest in politics and had not been involved in any political activity.
The delegate did not accept that the applicant would be persecuted because of his Arab ethnicity and because he would like to live a western lifestyle if he returns to Iran. The applicant advised the delegate he was not an Ahwazi Arab. The applicant was asked how some one would identify him as an Arab and he said that his father had an accent and his Iranian birth certificate notes he was a foreign citizen. He claims it would not be easy to get work and he stated he had been working illegally through friends.
The delegate’s decision notes the applicant was asked if he previously lived a western lifestyle in Iran and he stated that he had not and it was only after coming to Australia that he realised his human rights. He stated if he wore western clothes, played cards or listened to rap music in Iran, he did so in private. He stated he had a girlfriend but they had only been able to speak in private on the phone as is the custom, he could not take her on a date or party. He referred to being threatened to change clothes by the Basij and he gave evidence he was also stopped from playing cards in the park with his friends by the Basij. Asked if he had ever been questioned, threatened or harmed in any way in Iran, he said no. The delegate noted that when the applicant was asked what would happen if he had to return to Iran and comply with the morality laws of the country he said he feared he might get depression and he might consider committing suicide.
The delegate accepted the applicant would like to continue to live the westernised lifestyle and that he had been questioned twice by the Basij in the past because his appearance and behaviour were not perceived as complying sufficiently with Islamic requirements. The delegate found that the applicant’s past experiences did not indicate that he was subject to a level of harassment serious enough to be considered persecution. The delegate considered that the applicant was warned of offences in line with laws of general application that are enforced in a non-discriminatory manner to all Iranians and that the application of such laws does not constitute persecution, for the purpose of the Convention.
The applicant lodged a protection visa almost four months after he arrived in Australia. The delegate considered that if the applicant held genuine fears of returning to Iran he would have applied for a protection visa when he first arrived in Australia.
The delegate concluded the applicant was not owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The delegate refused to grant the applicant a protection visa.
Review application
The applicant provided a copy of the delegate’s decision with his application for review. In a submission received the day before the hearing, the applicant’s representative raised new claims on behalf of the applicant. In summary it was claimed that the applicant would be persecuted in Iran because of a relationship he developed with ‘a girl called [Ms A]’, who he met [several] years ago. [Ms A] is described as married with a child from her relationship with her husband. The submission describes the applicant’s relationship with [Ms A] as ‘very secretive’ due to the ‘conservative culture in Iran and the ‘fact that there are severe penalties for having an extramarital relationship in Iran’. The submission continues
The review applicant continued his communication with [Ms A] when he arrived to Australia , in the PV interview, the review applicant stated that he has a de facto relationship with girl in Iran, the review applicant maintain that while in Australia he used an application called “[name]” to chat with [Ms A] , he also used another apps like “[name]” and sometimes he used the normal phone land line to call [Ms A] , the review applicant maintain that few months ago, [Ms A’s] husband discovered the secret relationship between [Ms A] and the review applicant , [Ms A] was beaten by her husband and that the husband filed an application to attend before the court in Tehran, the review applicant also maintain that [Ms A’s] husband also made spoke to the community in Tehran about the secret relationship between the review applicant and [Ms A], he also went to the police and told them that the review applicant was of Arab ethnicity and that he disrespected the sharia law by establishing extramarital affair with his wife, the review applicant maintain that the police came to his family home telling his family that the review applicant had a illegitimate relationship with [Ms A], also to confirm that the review applicant is still in Australia .
The review applicant is fearful that he will be harmed on the hands of [Ms A’s] husband and his clan in a situation where the government represented by the police will put charges against him for adultery, as we know adultery in Iran is not allowed and there are strict rules around it [ the submission cites information about the punishment for adultery] ….
The review applicant maintain that [Ms A] was subjected to some physical violence as a result of her secret relationship with the applicant, she is now summoned by the court in order to give evidence in this matter which has a death penalty as it was supported by the above-mentioned country information, the review applicant maintain that he will suffer significant harm for the same reason if he is to go back to Iran.
When the applicant appeared before the Tribunal he provided the following documents:
a.A copy of marriage certificate between [Ms A] and [Ms A’s husband] stating the date of the marriage was [in] April 2010 and an accredited translation thereof (Tribunal file, folio 64-66).
b.A copy of a court document which, according to the accredited translation, [dated] [in] April 2016. The document indicates that it was served upon [Ms A]. It states that ‘you are required to appear in the matter of [Ms A’s husband] in which you are a party – the affidavit of and the attachments are hereby attached for your attention’. (Tribunal file, folio 67-68)

The applicant also provided a series of photographs depicting: a woman driving in a car with a man; a woman with a young boy; a wedding photo of a woman and her husband, a woman and a young boy; a woman, a man and a young boy; a woman and a young boy’; four photographs of a woman and a man who appears to be applicant; five photographs showing what appear to be scratches on an unidentifiable woman’s face and body; a photograph of a woman and a man holding a child and eating at a diner; a photograph of a woman and child on what appears to be a plane; thirteen photographs of a woman posing in various states of undress. (Tribunal file, 48-63).
The applicant was questioned about his claims and circumstances and, at his request, I took evidence from his brother. What follows is a summary of the matters discussed at the hearing. Where relevant the applicant’s evidence is discussed further below in the Assessment of Claims and Evidence.
The applicant told the Tribunal his former representative was negligent and unlicensed. He was supposed to attend the interview with the delegate and the applicant but he did not. He did not put down information that the applicant told him. The applicant confirmed everything he told the delegate was true. Asked whether there was any additional information he wanted to bring to my attention, he said his current lawyer had provided the information.
The applicant claimed that in around the end of March 2016 his family called his brother first to tell him about these threats and then they let him know about it. He said when his family found out of the threats they called his brother around the end of March and then they called him. I asked whether his brother told him about the conversation. He said yes, he told him and then his family called him and told him again. I asked why his family didn’t call him directly as it was his problem. The applicant gave evidence that he lived with his brother and when his family called they were both at home and his brother answered. He confirmed that he and his brother both spoke to his father during the same phone conversation.
The applicant confirmed that in Iran he lived at a stated address with his parents. He confirmed he worked as [Occupation 1] and that he had done this for some time; he told the Tribunal he worked in an office with many people for about seven to eight years. I asked whether, when he left Iran, he took leave from this job or quit the job. He said he quit. He confirmed that in between 2012 and 2014 he travelled to [Country 1] about five times. He also travelled to [Country 2] on a working visa (he couldn’t remember the exact date but it was on the passport). He thought this was in 2014 before he came to Australia.
The applicant is living with his brother in Australia. He works with his brother’s company. He told the Tribunal he did not plan to work for his brother’s company before he came to Australia. He speaks to his parents often. He spoke to his mum yesterday.
I asked whether he would describe himself as being in a relationship. He said yes. I asked who he was in a relationship with and he said he didn’t understand what I meant by relationship. I said I wanted to know whether he would describe himself as being in a relationship, he said yes, with his girlfriend. She was born in [Tehran]. I asked when their relationship began. He said he was working with her father at the [retail] shop and she came to the shop. He said this happened in 2014 before he came to Australia. I asked how long before he left Iran did he meet [Ms A]. He said one year. I asked how long after they met did their relationship begin. He said they started sending each other text messages, then photos, then songs and sometimes they used to see each other in secret. I asked where they would meet. He said somewhere far away from where he used to live and where she used to live. I asked where. He said they used to meet in an area in North Tehran. I asked where they would go. He said in parks and side streets, not main streets. I asked whether they met anywhere else. He said sometimes when her husband was away they met in her house. I noted in his protection visa application he was asked if he was in a relationship (married or de-facto) and he ticked no. He said he meant marriage.
The applicant confirmed he had never been involved in any political activity in Iran. I asked whether he had ever been detained for any reason in Iran, the applicant said not detention or jail but sometimes because of the way he used to dress up someone would come and ask questions. He confirmed he had never been detained. I asked whether he had ever been charged or convicted of a crime in Iran and he responded no. He referred to problems he had because of his dress and or because he played cards.
I asked why he left Iran. He said his problems started when they were very young. He came from Arabic origins. He was [an age] and he still did not have Iranian citizenship. His suffering started at primary school when he was called outside the classroom and asked what he was doing in Iran. The problem was that they mocked Arabs and he suffered from this problem all his life. [Relations] between Iran and [Country 1] made this hatred worse.
I noted he had travelled in and out of Iran multiple times since 2012. He said he travelled to [Country 1] because he used to visit family and he visited [Country 2] for work. I asked why he decided to leave Iran and travel to Australia. He said he had enough of the treatment young men used to face – he had no freedom in anything - he felt suffocated, like he was in jail. He said in the last period he felt like he couldn’t go on the streets. I asked why he couldn’t go on the streets – he had lived in Iran all his life. He said toward the end it was getting hard. They used to have the police and undercover people on the top of that. He said you had to be accountable for your dress, your hair, if you talked to a girl. Everything you did you had to be questioned for. There were more than 4000 undercover police on the streets waiting to question you. Asked why the authorities would have any particular interest in him, he said that he was a young man who wanted to feel free, not like he was living in a cage.
I asked why he thought he would be harmed if he returned to Iran now. He said in the last two years he knew what freedom was in Australia; he felt like a bird freed from a cage. I explained that the question the Tribunal had to consider was not whether he preferred living in Australia to Iran because of greater freedoms in Australia but whether there was a real chance that he would face serious harm or significant harm if he returned to Iran. He said that there is a new problem: the husband of the married woman with whom he had an affair discovered about their relationship. Now he was threatened by her husband and by law.
I asked who he thought would harm him because he had a relationship with a married woman. He said her husband and his tribe. I asked whether anyone else would harm him because of this relationship. He said her family too. I noted he mentioned having a problem with the law. He said now they found out about the relationship and he looked at the law and the law said he would deserve stoning and lashes and even jail. He said the husband threatened him to kill him because he had a relationship with his wife. I asked how he had threatened him. He said he always got in touch with her through social media and one day he called her mobile and her youngest son [was] holding the phone and when the phone answered he said Hullo [Ms A] and then he knew he was a man calling [Ms A] and when he heard his voice he stopped talking and he heard him start yelling and screaming asking who he was and the applicant hung up. I asked how her husband knew who he was. He said he thought her husband went to the site where they had connections and photos – when they were still in Iran they had taken photographs together.
I noted he said earlier he hadn’t been charged with any crimes in Iran. He said yes, he didn’t have any convictions but this problem happened in March 2016. He didn’t talk about this during the interview with the delegate because it hadn’t happened yet. He said because they were still in touch he was talking about it. I asked whether he had been charged with any crimes in Iran. He said before I came to Australia? I repeated the question: had he ever been charged with any crimes in Iran. He said now I have yes. Asked what crime he had been charged with, he replied adultery – having relations with a married woman. I asked when those charges were brought against him. He said this happened in the middle of March when her husband knew they took her to court. He said her husband went to his family home because ‘they’ knew him and they told his family that if he came back ‘they’ would kill him.
I asked what had happened to the court proceedings. He said for the wife? I put to the applicant that he had just told the Tribunal that he had been charged with adultery and I asked what had happened with respect to this. The applicant said because he is not in Iran until now they did not send him any documents to his house but the girl was investigated in the court. He said her husband knew about the relationship and he found out about the private photos his wife sent to the applicant. I asked the applicant how he knew he had been charged with adultery if no documents had been sent to his home. The applicant said because the girl ran away and he had been in touch with her. The applicant said the court case is still ongoing, she has been interrogated, and she had to go to court again. When her husband found out he beat her badly. The neighbours saved her from his hands. He didn’t know what would happen to her.
I noted he had claimed that he would face harm if he returned to Iran because he had a relationship with a married woman and her family wanted to harm him and he was of interest to the authorities because of adultery charges. I asked whether there are any other reasons that he was afraid of returning to Iran. The applicant reiterated his claims that he felt like there was no freedom, there was bad treatment from the neighbours, the society, the government, even the nationality they had.
The applicant confirmed he became an Iranian citizen. He said if he had any application where they saw on his citizenship papers that he was of a specific ethnicity they would try and block his application. He said for employment for example, as soon as they see you, and because in his citizenship papers it is mentioned he belongs to the Arab ethnicity. I noted he said he had the same job as [Occupation 1] from 2006 and 2014. He said that was not a legal job. He said no one gave us a job. The Iranians are always preferred.
The applicant confirmed he left Iran travelling on his own passport. I noted he hadn’t had any difficulty leaving Iran. I asked whether he told the truth about his circumstances in Iran when he applied for a visitor visa. He said yes. I said really? He said yes. I asked whether he told the truth when he spoke to the Tribunal about his visitor visa application. He said he didn’t mention the problem he suffered because if he did he probably couldn’t come to Australia. He said he was told if they found out he had any problem in Iran they wouldn’t grant him the visa. I put to the applicant the following paragraph from the Tribunal’s decision in relation to the review of his visitor visa application:
The visa applicant told the Tribunal he had been granted three months leave from his firm, he says he has taken only limited leave from his employment over the years, and his firm have a person that they can put in his role on a temporary basis while he is away. He plans to return to Iran at the end of the visa period as he wants to be with his parents in Iran and he wants to return to his job where he has an established profession.
The applicant said he did say that because he was told if he mentioned that he didn’t want to go back to Iran he wouldn’t be granted the visa. I noted that when I asked him whether what he said in relation to his visitor visa application was true he said it was. He said yes, but that was the only part – he was told he wouldn’t be able to be granted the visa if he didn’t say so. Everything else was correct. I put to the applicant that the question of why he wanted to come to Australia and what his intentions were was the main part of the visitor visa application. He said he did tell the truth but he wanted to get rid of the problem he had.
I asked the applicant to clarify what harm he had suffered in the past because of his Arab ethnicity. He said he was deprived from studying when he got to high school; they said he couldn’t continue until he had his citizenship. He referred to problems his brother in Iran had experienced because he suffered from a rare disease, had lost his vision, and required institutional care. I noted I needed to consider his circumstances, not the circumstances of his brother in Iran. He said the suffering his family faces, he suffers too. He was trying to find a solution for his brother, but he never did.
I put to the applicant that, on one view, his evidence indicated he had been employed as [Occupation 1] between 2006 and 2014 and he had the means to travel in and out of Iran on multiple occasions. Further, while he might have experienced some discrimination and some verbal taunts because of his Arab ethnicity (I noted he told the delegate he was insulted at school) what I had to consider was whether there was a real chance he would suffer serious harm or significant harm because of his ethnicity.
The applicant suggested that at the airport they might ask him, as a person of Arab ethnicity, where he had been for all this period away from his country. If he went back he would face the same discrimination and suffering. He was like a bird that had flown from the cage and it was very hard to return him to the cage. I put to the applicant that the country information available to the Tribunal didn’t indicate that a person would be singled out for questioning at the airport simply because they were of Arab ethnicity even in circumstances where they had been away from the country for a long time.
The applicant reiterated that, because he is of Arab ethnicity, he might be singled out. I invited the applicant to comment upon country information from DFAT about the situation of Arabs in Iran (the information put to the applicant is set out in full in the Assessment of Claims and Evidence).[2] I put to him that, on one view of his evidence, he didn’t seem to have suffered serious harm or significant harm in the past because of his Arab ethnicity and certainly not in the years immediately before he left Iran. He didn’t seem to have had any involvement in asserting political or cultural rights for Arabs and that, based on the country information, it may be difficult to accept that there was a real chance he would face serious harm or significant harm if he returned to Iran.
[2] DFAT Country information Report Iran, 11 April 2016
The applicant said this was true for Iranian Arabs. The applicant said when he said he would face persecution he couldn’t say how he felt. He referred to young Iranian men dying in jail because of torture during the election of 1988. He asked how he would be treated if he contributed to any of this and they found out because he was of Arab ethnicity. He said that while you are in the country you cannot say what you think, you have no freedom, you are scared that if you are caught and they will find out you are from the Arab ethnicity. He said these young men died when they were tortured and they only told their parents where they were buried. I put to the applicant that these young men didn’t seem to have anything to do with his particular circumstances. He responded that he had isolated himself from the community and the social life. He always feared that if he had to oppose anything or went to a demonstration his punishment would be much worse.
I put to the applicant that, on one view of his evidence, the reason he wasn’t politically active in the past was because he wasn’t interested in politics. He said he would like to give his opinion but he had no right to say what he thought. He was against the situation in Iran because it was all unfair. I asked what, in particular, he was against. He said just the law; the young men have no rights at all and they have to be accountable. He said that the whole world is against Iran; it is an enemy to most country because of its politics; they want to implement the religion the way they want; there was no freedom. He said if the Tribunal checked human rights reports it would know Iran was criticised because of the treatment of young men. He asked if the Tribunal accepted the human rights reports.
I reminded the applicant that what I had to consider were his particular circumstances and whether there was a real chance he would face serious harm or significant harm in Iran. The applicant said yes he would face all these things if he went back now. He had tasted freedom in Australia. If he went back he would have no freedom of speech or anything as there was no freedom in Iran. He had psychological problems because of this. If they found out he was from a specific ethnicity he would be lost in jail nobody would know what would happen to him. He said that this man and his family kept threatening him. He was a young man and he didn’t have any freedom; he would lose his life in Iran.
I referred to his claims that he wanted to live a western lifestyle. He said he wanted to be free. He said they didn’t have any values in Iran; you had to follow whatever politics they want. I asked the applicant whether he had ever been harmed or threatened in the past in Iran because he wanted to live a western lifestyle. He said one day he was wearing shorts and the Basij forces started to ask questions and they threatened him because they said the way he was dressed was against the law and the religion. He had to be accountable for his hair cut. Thereare police checkpoints in the street and they catch and take young men because of their dress and hair.
I asked why he would face any problems because of his hair style. He told the Tribunal he used to have fashionable hair but now he was facing hair loss. The problem now was he was losing his hair. I asked when the incident with the Basij was. He said he couldn’t remember the exact date, he was seventeen or eighteen. Asked whether he had had any other problems with the Basij since that date, he said they were too scared to do it again because they didn’t have the freedom; they put the rules so you had to live that way. I asked whether there were other issues (in addition to the dress and hairstyle). He said yes, for employment. He said as [Occupation 1] he had to work with acid and it was hurting his chest and he wanted to work in another job but because of his ethnicity he couldn’t find it.
I noted he said to the delegate that he had a girlfriend he couldn’t go out with. He said that was [Ms A] – they were going out in secret. I put to the applicant that if he had an affair with a married woman in Australia he probably couldn’t go out with her either and the secrecy appeared to be the result of the type of relationship. The applicant said [Ms A’s] husband neglected her for a long time. I noted I didn’t think that he mentioned to the delegate that this girlfriend was married. He said he didn’t mention it because it wasn’t a problem at that time. I noted he just told the delegate he couldn’t take this girlfriend on a date or to the party. He said no, we couldn’t; it had to be in secret. I noted that when he told the delegate that he couldn’t go out with his girlfriend it sounded like he was saying that this was one of the reasons he was frustrated by the lack of freedom in Iran. I put to the applicant from what he said today it sounded like he couldn’t go out with his girlfriend because she was married. He said they met outside of their area. I asked whether they had any problems when they met in parks and streets. He said it was like an adventure – they would meet in a car and watch if anyone was there.

I put to the applicant that while the DFAT reported that certain hairstyles were banned and considered to be western or unislamic, DFAT has also ‘regularly seen young Iranians – including men - with ‘western’ hairstyles, using hair products and with visible hair removal’ and that DFAT assesses that Iranians would be unlikely to come to the interest of authorities on the basis of these characteristics alone. The applicant gave evidence they face problems and he said witnessed the police catching young men with specific haircuts and they took undertakings from them. I observed his evidence indicated it was now a moot point for him because of the hair loss issue. He said he didn’t want to stay in Australia just because of his hair; he didn’t have any type of freedom and there was also the issue of his ethnicity.
I noted he said to the delegate he wanted to listen to western music and I put to him that, on one view of the country information, it wasn’t clear why he couldn’t do this in Iran. He said if there was a party with western music they would face maybe lashes or jail. I noted that DFAT reports that Western music has been banned since the Islamic Revolution of 1979 and while western music is still not meant to be listened to, many young Iranians do so. I observed that, while there have been some incidents like the young Iranians who were arrested for appearing in a video dancing (published and viewed widely on YouTube) to Pharrell Williams' song ‘Happy’, DFAT has regularly observed and heard western music being played in places such as coffee shops, restaurants, taxis and private cars and assesses Iranians generally have a low risk of being targeted on the basis of this alone. He said they face risk if they play this type of music, even if a car was playing this music, they would stop and fine them.
I put to the applicant that I needed to consider was whether there was a real chance he would face serious harm or significant harm because of how he would live his life in Iran. I put to him that, on one view, he didn’t seem to have suffered serious harm or significant harm in the past. I put to the applicant that DFAT assesses
it is difficult to make an overall assessment of the treatment of what are sometimes labelled ‘Westernised’ Iranians. This term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to and try to live what could be called a modern lifestyle. Many poorer Iranians also aspire to such a lifestyle but live more traditionally.
The applicant expressed surprise at this assessment and queried how it could be reconciled with human rights reports. I noted that DFAT did acknowledge that youth in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour. I put to the applicant that, on one view, having regard to his evidence about what had happened to him in the past, and what he had said about how he would like to live, I might form the view that the chance that he would suffer serious harm or significant harm because he wants to live a western lifestyle might be remote. The applicant said why he had to face this type of harassment. I put the applicant that, on one view, there was no real chance that he would face serious harm or significant harm. He said that he was a young man and the Tribunal was telling him he had to take this treatment against his hair, dress and music. He referred to being discriminated against because of his ethnicity. He said it was like living in a cage.
I referred to his evidence to the Tribunal, which was that he was not active in politics in Iran. I put to the applicant that, while he might not support the Iranian regime, he didn’t seem to have experienced any harm in the past because of his political opinion. He said he was too scared to give his opinion. If he was not afraid of the risk he would be the first one to give his opinion. He said that Khamenei the leader is the biggest dictator. If the president did not do as he wished he would be punished. He said the Iranians are not liked because of their political views. The hearing was adjourned at the request of the interpreter.
When the hearing resumed I asked the applicant about his first conversation with [Ms A]. He asked whether the Tribunal meant directly or by message. I observed that to message her he must have acquired her telephone number. He said it was in her father’s shop; she gave him her number and they started messaging each other. She used to call her dad’s shop and he heard her speaking to her dad and he saw that it was the same number she gave him. He knew from the beginning she was married. Asked how often he saw her in person before he left Iran, he said every two or three weeks. In the beginning their relationship was not a physical one but it became that way. I asked if they spoke about what would happen in the future with their relationship. He said the story started because she had a problem with her husband, he was very busy. I noted that wasn’t the question –the question was whether they spoke about what would happen in the future. He said no, they didn’t talk about the future. He added that she used to say I dream that you will be my husband.
The applicant told the Tribunal he did not tell [Ms A] he was planning to travel to Australia. I said this must have been something of a surprise for [Ms A]. He said in the beginning she was upset. I asked why he would choose to maintain this long distance relationship with a married woman when he had no intention of returning to Iran: it didn’t seem like the relationship had any future. He said they fell in love: she understood him, he understood her and they were still in love now. When she used to talk about her problems he understood her and vice versa. I put to the applicant that it seemed odd that, if he was in a relationship that was in any way serious, he would not mention to that person that he intended to leave the country in which he lived permanently as this was a decision that would impact on the future of that relationship. He replied that they knew from the beginning that it was very hard for them to be together but there was a strong bond between them and he was very attached to her. He said if he had a phone call from her and his mother at the same time in Australia he would prefer to speak to [Ms A].
I asked what he thought would happen to their relationship when he left Iran. He said he knew she would be very hurt but they had no hope of being together. I asked why, if they had no hope of being together, he continued to have a long distance relationship with a married woman in Iran. I noted he was a young man and I asked whether he was planning to continue this relationship. The applicant said when he speaks to her he feels really good. I put to the applicant I had difficulty reconciling his statements that he loved this woman and that he wanted to continue this relationship with his evidence that he didn’t tell her that he was leaving Iran and he didn’t discuss with her what might happen in their relationship in the future. He said when he first left the country she was shocked and crying on the phone. He did not know why he could not leave her; their attachment was not normal.
The applicant told the Tribunal no one knew about his relationship with [Ms A] at the time he left Iran as it was a secret. His brother did not find out until his family called. I asked whether he told his brother whether he was planning to continue to have this relationship. He said no, he didn’t talk to him, his family was shocked that he had a relationship with a married woman. He claimed the last time he spoke to [Ms A] was the end of last week.
I asked where [Ms A] is now. He said she is running away. She doesn’t have a certain place. I asked about the progress of the court proceedings against her. He said he knew she went to the family court and then it was referred to a higher court because it was considered adultery. I noted the documents he had provided only referred to the family court. He said that’s what she told him about. He advised the Tribunal that [Ms A] sent him the documents he had provided. I put to the applicant that the document he had provided was a photocopy and the country information available to the Tribunal indicated that it was possible to obtain fraudulent documentation from Iran. He said it was not something that he created; her husband saw the photos between him and his wife on the website. If he was willing to create things like this he would have talked about this during the interview with the delegate.
I put to the applicant that because the country information indicated that fraudulent documentation was readily available it might be that I could give the documents that he provided little or no weight in assessing his claims and I might place greater weight on his oral testimony and the written submissions made on his behalf. He said he was scared about what would happen now this relationship was known: he would be harmed by the husband or punished by the law. He loved [Ms A] and he was very worried about what was going to happen to her.
I put to the applicant that, even taken at face value, the documents he had provided did not directly support his claims in any way. I put to the applicant that the document he said [Ms A] received from the court was simply a document that she was required to appear in a matter in which her husband was a party and it didn’t say anything about adultery. He said that’s how it starts in Iran; that’s how the preliminary hearings start in Iran. I noted the document didn’t say anything about adultery charges, or the applicant, or the nature of the proceedings before the Family Court. He said it is the first subpoena for her to attend court as a preliminary hearing. I put to the applicant that he might know someone called [Ms A] who was married in Iran but the document he had provided didn’t support his claims that he or [Ms A] had been charged with adultery.
The applicant asked whether the photographs with [Ms A] proved anything. I put to the applicant that I may not be able to give them much weight as I didn’t know what circumstances they were taken, who they were taken by, or when they were taken. I put to the applicant that the fact there were photographs of him with a woman in Iran didn’t establish that he was wanted by the authorities in relation to adultery or that her husband wanted to kill him. He said all he knew was that if he checked the social media site they are getting in touch together – this in itself deserves lashes in Iran and maybe jail and other punishment. I put to the applicant that the photographs he had provided did not indicate where they were from or that they were publicly available on any social media site. He reiterated that they are. I put to the applicant that, on one view, if he or [Ms A] had been charged with adultery he might have documentation such as summonses or arrest warrants or the court proceedings in relation to adultery and nothing of that kind had been submitted. He said the problem is that he is outside of the country and he was surprised the papers from the court had not arrived but her husband and his family were threatening to kill him.
I asked when her husband found out about their relationship. He said around the middle of March, he could not remember the exact date. He reiterated his claims that he called [Ms A] and her husband took her phone off their son and that, when her husband asked the applicant who he was, he hung up. He said that for a while he didn’t hear anything about [Ms A]. After a while he found out he beat [Ms A] badly and the neighbours saved her from his hands and got her out of the house. He wanted to kill her and she told him she ran away and left the house. He was trying to hit her on the head with her son’s [belongings] and she ran away. Her son is still with his father. I noted that his evidence was [Ms A’s] husband spoke to an unknown man on the phone and from that he figured out his wife was having an adulterous relationship with the applicant. The applicant said that in their tradition married women don’t talk to anyone else other than family members or relative so when he heard his voice he asked who he was. [Ms A’s] husband found his name in her phone. He added it was not his full name but his initials and so when he found this he wanted to find this out so he went to the site and opened the site and he saw all the text messages and photographs and he saw all these photos (referring to the photographs he provided to the Tribunal) then he tried to hit [Ms A] and took her to court and the problems started.
I asked the applicant to clarify when [Ms A’s] husband threatened him. He said the problem started mid-March and toward the end of March he went to the applicant’s family. I asked whether he ever threatened the applicant directly. He said no, because he didn’t give him a chance, he hung up the phone. I asked how many times he had been to his family home, and he said ‘many times’ and his family got sick and tired of him and they said when you see the applicant do whatever you like to him, we will have nothing to do with the problem. The applicant said he would threaten his family all the time in a way that upset his family – he was a crazy man. I said when he went to his family many times how many times was he talking about. The applicant was not sure but he made the problem very big. I asked if he knew about how many times, and he said he didn’t ask but he knew [Ms A’s] husband and his family went and caused scenes.
I asked if he was able to say whether he said he went two or three times or more than ten times –what did you mean by ‘many’. He said he did not ask how many times but he would imagine more than five times as his family said they kept coming and threatening us. He said he even lost his family because of this problem. I asked what he meant when he said he lost his family and he replied that they found out he had relationship with a married woman and this is not approved by their culture. I asked again how he lost his family. He gave evidence, by his family telling [Ms A’s] husband to do whatever you want with him it means they want to get rid of that person. I asked whether he meant that his family wanted to get rid of him, he indicated he did not but they had to get rid of this person (he appears to have been referring to [Ms A’s] husband). I put to the applicant it didn’t sound like he had lost his family as he had earlier told the tribunal he spoke to his family yesterday. He said yes but his family are upset with him because of what he did. I noted he told delegate he was practising Muslim. I asked how he personally made this decision to enter into an affair with a married woman. He said it was wrong. He became upset. I invited the applicant to have a break while I took evidence from his brother.
The applicant’s brother (the witness) gave evidence. He confirmed he had appeared before the Tribunal (differently constituted) when he was the review applicant in relation to his brother’s visitor visa application. He said his evidence to that Tribunal was true. He brought his brother to Australia for a visit. He didn’t know he was going to stay in Australia: the plan was to come for a visit and go back. He was planning to bring his parents to Australia too. His brother is now working with him casually. He started working with him after he received his tax file number. When he first arrived he had money with him. He started working after three or four months. After three months he applied for a protection visa.
I asked whether, at the time his brother came to Australia, his brother had any problems in Iran. The witness said no. He was not aware of any reasons his brother could not go back. I asked what had changed. He gave evidence that about three months ago his Dad called him and said there was a problem. His brother was home when his father called. His father told him that there were threats against his brother because he had a relationship with a girl. He was surprised because his brother never mentioned this to him. He said they threatened if they found the applicant they would kill him. He didn’t know the names of the men who made these threats.
The witness gave evidence that his brother had a relationship with a woman called [Ms A] and that he believes they are still in contact. I asked whether [Ms A’s] husband had been to his family home in Iran. He said yes, they lived in the same area. I asked if his parents had told him how many times he had been to the house, he said many times they didn’t say exactly, that he had kept coming. I asked if he knew why he would keep doing that if his brother was in Australia. He said maybe he wants to find out if he was going back or not. He told the Tribunal these threats were not a small problem. I asked whether, other than the threats from [Ms A’s] husband and his tribe, was he aware of any other reason that his brother would be harmed in Iran. The witness said in Iran there is no freedom if anyone has a relationship with a girl, if they caught a boy and girl together they would harm them badly, and he referred to difficulties that they had because their Dad was [from Country 1].
I asked if he knew whether his brother had ever been charged with a criminal offence in Iran. The witness said there was one incident when his brother was wearing shorts and the Basij threatened him and this happened with him as well. I noted his brother said this happened when he was seventeen. He said the same thing happened to him when he was in front of the house. I asked the witness whether, other than this incident, he was aware of his brother having any problems with the Iranian authorities for any other reason. He said he had no idea if he was caught over the girl or anything.
I noted that he had said that when his brother left Iran he thought he was coming to Australia for a visit but about three months ago he became aware his brother had been threatened by [Ms A’s] husband. I noted he had told me that his brother was also working for his company. He said this was casual – not five days a week. I noted his brother applied for a protection visa back in 2014 long before threats were made against his brother by [Ms A’s] husband. I asked the witness if he was aware of any reason that the applicant would have applied for a protection visa in October 2014. He said when he came to Australia he saw the life here was nice, there is law and respect for humans. In Iran there is no freedom but he did not have a problem; no real danger.
After the applicant returned to the hearing room, I noted his brother told the Tribunal that at the time he gave evidence about the applicant’s visitor visa application he was not aware that the applicant had any problems in Iran or that he intended to stay in Australia. The applicant confirmed this was correct. I asked why he didn’t tell his brother about the problems he was having in Iran. He said that he was afraid that if he told him he wouldn’t help him to come to Australia. Later in the hearing I also discussed with the applicant the weight that might be placed on his brother’s evidence and, using the prescribed procedure in s 424AA of the Act, I invited him to comment or respond to certain information his brother gave to the Tribunal.
I asked the applicant to clarify whether he believed he had been charged with a criminal offence in Iran. He said this is the first time he faced anything like this. I asked whether he believed he had been charged with adultery in Iran. He said yes, of course, because they saw his photographs with the girl and they knew about his relationship with her. He already warned her many times before to delete the photographs because something like this might happen. He was really worried because there was a physical relationship between him and [Ms A] and if they did any testing they would find out. He is frightened of returning to Iran. He is so stressed he can’t sleep.

I noted DFAT reported that successful prosecutions for adultery are difficult given the legal requirement for four witnesses. He said that’s true but the photos prove everything. I put to the applicant that the photos he had provided didn’t seem to establish anything. He said the photographs between them and the private messages and if they had any medical testing they would find out about the relationship. I put to the applicant it was not clear how that would occur. He said when they saw the photographs they would know they were in a relationship and if they had any doubt they could do medical testing. I put to the applicant that he had been out of Iran for a long time and he had an affair with a married woman: it wasn’t clear what medical tests it would establish. He said they had a sexual relationship and he heard there were special tests to establish whether a physical relationship happened or not. I noted he had been out of Iran for a long time, [Ms A] was married, he didn’t claim she was a virgin. He said ‘so the test doesn’t show’? He said he checked the law and an affair between a man and a married woman was punishable by lashes or maybe jailed.
I put to the applicant that DFAT assesses that adultery is often not reported for reasons of honour. I asked why [Ms A’s] husband would want to expose his family to shame and stigma by pursuing adultery prosecutions against [Ms A’s] and the applicant. He said she is begging him and asking him not to expose her to this, but he insists because he is a crazy man.
I put to the applicant that, on one view, it was difficult to understand why [Ms A’s] husband would go to her family home on many occasions when it would have been quickly apparent he wasn’t in the country. He said he is very upset and leading a hysterical life and he even wants to get back at his family but his family told him that they want nothing to do with that.
I put to the applicant that his brother told the Tribunal his Dad called him three months ago and said threats had been made against the applicant. However, when I asked his brother about whether he had ever had any problems with the authorities in Iran and whether he had ever been charged with a criminal offence he referred to the incident the applicant told me about when he was a teenager and he got in trouble with the Basij but he didn’t mention that he was charged with adultery or that he was in trouble with the authorities because of his relationship with [Ms A]. I put to the applicant that it seemed rather strange that his brother would be unaware of that. The applicant said he never told his brother about the relationship and he asked whether the Tribunal thought he had showed his brother the photos. I put to the applicant that his brother did know about the relationship with [Ms A] and he knew [Ms A’s] name – so he must have told him something – but he didn’t seem to know the applicant had been charged with adultery or that there were any court proceedings against him. He responded that his brother had nothing to do with his problem, he was at fault.
I put to the applicant that I might have concerns about the credibility of his claims that he had an affair with a married woman in Iran and that this had now been exposed. I noted I discussed a number of concerns with him and, in addition, the timing of this claim might strike the Tribunal as rather unlikely. I noted despite the fact that it was entirely unclear what future prospects the relationship had, given she was married in Iran and he was applying for a protection visa in Australia he remained in contact with her and this relationship, which was previously a secret, was only discovered in 2016. He said he swore on the Quran he told the truth and if this was his plan he would have said this long ago.
I put to the applicant that there were other aspects of his evidence which might cause me to be concerned about his credibility and I discussed with him his evidence about the visitor visa application. I also put to the applicant that the fact he had travelled in and out of Iran on multiple occasions in the years up until he left Iran, might suggest that he didn’t have any problems at the time he left Iran. He said he didn’t have a problem. He said [Country 1] was not safe so he could not stay there. I noted he also went to [Country 2]. He said once the visa expired you couldn’t renew it unlike in Australia where you could apply for a protection visa.
I put to the applicant if his evidence was that he didn’t have any problems at the time he left Iran, why did he apply for a protection visa in October 2014 before the problems with [Ms A] arose. He said that is true, he didn’t have a problem then; if you look at the website he didn’t have a problem. I noted that when he applied for protection in October 2014 he made claims that he would be subject to serious harm or significant harm if he returned to Iran. I asked on what basis he made those claims given he said he had no problems when he left Iran. He said he did mention that because of the persecution of Arab ethnic people he applied for protection. I put to the applicant that it was difficult to reconcile this statement with his evidence that he had no problems at the time he left Iran. He said he there was the incident with Basij and as a young man he didn’t have freedom to live in his country like any other man. I put to the applicant that, on one view of his evidence, he was able to work and travel in and out of Iran and live his life there. The applicant said if an animal is in a cage sometimes they wouldn’t eat because freedom is more important than food; freedom is very important to him; he has not had the freedom he had in Australia.
I asked the applicant why, if he felt so strongly about the problems he had experienced in the past because of his Arab ethnicity and his desire for freedom, he didn’t apply for protection visa as soon as he arrived in Australia. He said he was looking for a good lawyer and his luck was that he had a person who was not registered. I noted he had an opportunity to put forward his claims to the delegate and it didn’t seem like any claims had been left out. He said yes, but he was relying on his representative to attend the interview and when he was not there he was very anxious. I noted I thought that when the delegate asked him if he expected his representative to be there, he said he didn’t. He reiterated he expected [the representative] to come.
I referred to the delegate’s consideration of whether the applicant would face harm as a failed asylum seeker after travelling to a western country. I put to the applicant that it was not clear why the Iranian authorities would identify him as a failed asylum seeker given he left Iran on his own passport. He said when the person at the airport saw his ticket that person asked him whether he was ever coming back. He said he was asked why are you leaving the country and what’s wrong with the country. He said they have an idea that young men are leaving the country because of what’s going on in the country. I put to the applicant that, even if the Iranian authorities became aware that he had sought asylum in Australia or that he had been in Australia for a long time or longer than the visa he used to travel to Australia allowed, the country information didn’t indicate that he would face harm for this reason. I discussed with the applicant country information concerning the treatment of failed asylum seekers and returnees and, where relevant, this information and the applicant’s responses are set out below in the Assessment of Claims and Evidence.
After an adjournment to enable the applicant to consult privately with his representative, the applicant said most of the information referred to by the Tribunal supported Iran and he would like the Tribunal to think of the persecution he would face because of his problem. He reiterated his life was at risk. I referred to the applicant’s claim that he had psychological problems and his evidence to the delegate that he was depressed. I observed that I did not have any medical evidence about any psychological problems he had. He said he had never had problems before but now he is losing his hair, he doesn’t sleep at night, he felt destroyed. He wants to save his life. His hair was going grey.
I put to the applicant information in paragraph 21 of the decision of the Tribunal in relation to his visitor visa application in accordance with s 424 AA. I put to the applicant that the decision record states:
The visa applicant told the Tribunal he had been granted three months leave from his firm, he says he has taken only limited leave from his employment over the years, and his firm have a person that they can put in his role on a temporary basis while he is away. He plans to return to Iran at the end of the visa period as he wants to be with his parents in Iran and he wants to return to his job where he has an established profession.
I explained to the applicant that this information was relevant to the review because he told the Tribunal that the information he provided in relation to his visitor visa application was true. However, he also told the Tribunal that he quit his job before he left Iran and his evidence indicates that when he left Iran he did not intend to return to Iran. I put to the applicant that he initially told the Tribunal that his evidence in relation to his visitor visa application was true when in fact it was inconsistent with his evidence to the Tribunal may cast doubt upon his credibility as a witness and that, subject to his comments, this would be the reason or part of the reason for affirming the decision under review.
The second item of information I put to the applicant was that when asked by the Tribunal whether the applicant had been charged with a crime in Iran, his brother referred to the problems he had with the Basij because he was wearing shorts. When asked whether the applicant had any other problems with the authorities, his brother said he had no idea if he had problems because he was caught with a girl and he did not mention that the applicant had been charged with adultery as a result of his relationship with [Ms A]. I put to the applicant that this information was relevant to the review because the Tribunal might consider the fact that his brother, with whom he was living was unaware that he had been charged with adultery as a result of his relationship with [Ms A] casts doubt upon the credibility of these claims. Subject to his comments this would be the reason or part of the reason for affirming the decision under review.
The applicant confirmed he understood the information that was put to him and why it was relevant. He said because of the problem that happened lately his thoughts were confused, he didn’t know what to say, there was lots of pressure on him. He advised the Tribunal he wanted to respond in writing to the s 424 AA information and he was given time to do so.
The applicant’s representative made oral submissions. His representative claimed his claims before the Department were genuine and reflected his personality; he was honest and he did not say things that were not true. The representative submitted the extra-marital affair was an emerging issue that would forever change the applicant’s life. The representative said whether he was of interest to the Basij or the authorities was not clear (in the circumstances he described other people in Iran probably suffered the same type of persecution). Whether this daily discrimination amounted to persecution was a question for the Tribunal to assess but Human Rights Watch had a report from July 2016 which said the Iranian government was still targeting Arabs. His client also said surname [also] affects his employment when he applies for jobs and this is how they know he is an Arab.
The representative argued that Arabs had been targeted for wearing traditional clothing and there was a chance the applicant would be targeted for wearing western clothes. The representative referred to the young Iranians who were arrested for making the video of themselves dancing to Happy by Pharral Williams. He noted they were charged with illicit relations and this was a point of concern because irrespective of whether his affair with [Ms A] was extra marital this alone (illicit relations) was a charge. The representative referred to the question of whether charges were laid against the applicant and referred to the legal provisions under which a person can be charged with adultery and the procedure for obtaining evidence in such matters. He said it was unclear how long this took. He said these photographs show he has some sort of relationships with [Ms A]. He raised the question of testing and suggested they might have kept samples of clothing.

100. The representative argued that his client satisfied the religious grounds of the Convention because adultery is in breach of Islamic teachings. The representative suggested that the applicant might be selectively targeted by the society in Iran as well as the authorities because of the social hatred of Arabs. He said adultery proceedings are usually initiated by blood relatives – her husband would start the proceedings. They didn’t know for sure whether charges were laid against the applicant – they may be gathering evidence. The fact the applicant was not originally an Iranian singled him out as being different from the community at large.
101. I put to the applicant that his representative had stated he was not clear whether charges had been laid against him for adultery. I asked the applicant to clarify whether he believed charges had been brought against him for adultery. He said according to the photos and text messages with [Ms A] when they came to his family house they told them something like this happened. I asked if he could clarify whether it was his evidence that both he and [Ms A] had been charged with adultery and there were currently court proceedings against both of them or just [Ms A]. He said the court proceedings are still going against [Ms A]. I asked him to clarify whether there were court proceedings against him. He said not yet, they didn’t know, they didn’t receive anything about that yet. I asked whether he knew whether [Ms A’s] husband had made a complaint to the authorities about him, he said he believed so but he was not really sure because he was outside the country. I put to the applicant he could still be sentenced in absentia, he said he didn’t know. He was confused and worried as he didn’t know what would happen in the future.
Post hearing submissions – response to 424 AA information
102. In post hearing submissions the applicant responded to the first item of information that was put to him under 424AA by stating that he
… maintain[s] that the information in relation to his 3 months leave from work was the only inaccurate information that he provided the department and the tribunal with …his reasons for providing such inaccurate information was because he was afraid that his application will be refused if he would have declared that he quit his job prior to his departure from Iran, the review applicant maintain that he done that because he did not want to go back to Iran, because what he perceived as persecution practiced by the Iranian authorities against his freedom as a young person who have tendencies towards the western lifestyle also because of what he perceived as persecution practiced by the Iranian authorities due to his Arabic ethnicity , so the review applicant maintain that he did lie to the department and the tribunal just out of his fear that his application will be rejected, he also maintain that he never intended to go back to Iran because he was fearful that he might be harmed due to the above mentioned reasons, apart from this aspect of his claim , the review applicant maintain that all the other information’s he provided was correct.

103. With respect to the evidence of the applicant’s brother when he said he had no idea if the applicant had problems because he was caught with a girl and did not mention that the applicant had been charged with adultery as a result of his relationship with [Ms A]
…The review applicant maintain that his brother did not know about the review application relation with [Ms A], the review applicant’s brother gave testimony to the tribunal in which he described how his father rang him and told him about the threats they received by [Ms A’s] Husband, the review applicant maintained during the tribunal hearing that his family (including his brother have no idea about this relationship ) , it was only when this relationship was exposed , that is when the review applicant family knew about what was happening , the review applicant maintain that it is reasonable and logical to conclude that such relationship with married women is not something to that the review applicant will tell his family about , the Iranian society is very secretive when it comes to the normal relationships so how it will be when someone will have a relationship with a married women? , also, his brother did not mention anything about charges been laid against the review applicant because the review applicant himself is not sure whether there are charges pending against him or not , the review applicant elaborated that he not aware of any charges being laid against him because he is in Australia, he don’t know whether such charges were actually issued or in the process of being issued in the foreseeable future , the review applicant maintain he and his brother told the tribunal what they knew about the incident up to the date of the hearing, the review applicant maintain that the fact that [Ms A] husband exposed this relationship was fairly recent incident which occurred in march this year, with consequences that can last for a long period of time, the review applicant also maintain that because this incident is recent, then it is too early to predict the full scope of the consequences that my occur as a reaction to such incident, he maintain that he fear the government punishment for committing an adultery with a married women, he also fear the tribal and the personal revenge against his person, in this context, the review applicant stated that [Ms A’s] husband threatened the review applicant ‘s family, which reflects the fact that scope of harm can extend to the applicant’s family as well.
In reference to the inaccurate information in relation to the 3 months leave which the review applicant provided both the department and the tribunal with, he stated that he done so because of his fear that his application might be refused if he told the truth about his work status in Iran, the review applicant of course was contemplating to apply for protection visa because what he perceived as persecution in Iran, the fact that he applied later for protection visa should be considered also when assessing why he provided an inaccurate information (lie) to the department or the tribunal , of course he is not excused in doing this , however he is a person who have some fears (subjective and objective ) , he maintain that his fears pushed him to lie .
Professor Hathaway maintain that” Proof of false testimony should not automatically imply rejection of recognition of refugee claims, although it may have an impact of the refugee application, it is important to bear in mind that people have various motives for lies and that a lie does not necessarily mean guilt, lies do not prove the converse, lies may be considered in support of credibility ”.
The review applicant maintain that he lied to his brother, the department and the tribunal out of his fear of going back to Iran.
When the review applicant was asked whether he was charged with adultery? he replied that it might be the case because he contemplated that while the authorities in Iran summoned [Ms A] to appear before the court then, it is natural to conclude that he will be summoned as well sometime in the foreseeable future after gathering some evidence from the people who will testify about adultery or (Zina) as it was described in Islam, here, I believe that such issue will take considerable until we reach to the final stage when the prosecutor will charge the review applicant with adultery, it is normal to see that in any criminal proceeding, the prosecutor will first gather evidence by taking statements from the witnesses, then the police itself will do some statements ,there is also likelihood of using expert evidence is such cases , if we add all of this to the normal adjournments associated with such cases, then we will reasonably conclude that such charges may be laid at sometime in the future , especially that the matter was only exposed in march 2016, the Iranian law describe a long list of procedures that may be taken into account when someone is charged with adultery…

Claims to face harm because of his actual or imputed political opinion
124. With respect to his political opinion, the applicant’s evidence was that he was not politically active in Iran and I note that he indicated to the delegate that he was not interested in politics.[9] The applicant has not claimed, and there is no evidence before the Tribunal, that indicates he has been involved in political activity in Australia. At the hearing the applicant suggested that the reason for his political inaction in Iran was that he was frightened of the consequences of speaking out. At the hearing I sought to explore with the applicant the issues about which he would want to speak out about, however, I found his responses to be vague and limited to generalities. While I accept the applicant, like many young Iranians, is disillusioned and dissatisfied with the current regime in Iran and disagrees with the way in which the Basij enforces Islamic social mores upon the population, I do not accept that there is a real chance that this sense of dissatisfaction will attract the adverse attention of the Iranian authorities.
[9] Tribunal file, folio 10 (delegate’s decision, p.7)
125. I do not accept that the applicant has any genuine interest or desire to engage in political activity of any type in Iran. For the avoidance of doubt I find that the applicant would not be politically active in Iran, not because of the fear of harm, but because he has no interest in involving himself in such activity. Nor, on the evidence before me, and having regard to what I have accepted of the applicant’s claims and my findings (set out below) about the risks facing failed asylum seekers, do I accept that there is a real chance that the applicant will be imputed to hold a political opinion that is opposed to the Iranian regime. Accordingly, I do not accept that there is a real chance that the applicant will face serious harm or significant harm because of his actual or imputed political opinion.
Claims to fear harm arising from his relationship with a married woman
126. The day before the hearing the applicant raised new claims that in around March 2016 his affair with a married woman in Iran was discovered by her husband. He claimed that, as a result of the affair being discovered, his married lover was beaten and subject to court proceedings for adultery. He claimed that he was now at risk of being killed or otherwise harmed by her husband, his tribe, and/or the wife’s family. He further claimed that he was now of adverse interest to the Iranian authorities because he had had relations with a married woman. The applicant has said that these claims were not raised before the Department because the events that gave rise to the claims had not yet occurred. I accept that adultery is a specific crime in Iran and I have had regard to a range of country information[10] about the prosecution of this crime and the cruel and inhumane punishments that are inflicted upon those who are successfully prosecuted. However, in this particular case, I have serious concerns about the credibility of the applicant’s claims that he is at risk of harm in Iran because he had an affair with a married woman and that, over eighteen months after he arrived in Australia, this affair has now been discovered.
[10] This includes the country information provided in the pre-hearing and post-hearing submissions and the information in the DFAT Country Information Report: Iran dated 21 April 2016.
127. I was concerned that the applicant’s evidence about whether he was of interest to the authorities in Iran lacked consistency. After initially telling the Tribunal he had never been convicted or charged with a crime in Iran, when asked whether he had ever been charged with any crimes in Iran he responded now I have yes. Asked what crime he had been charged with, he responded adultery – having relations with a married woman and he claimed that these charges were brought against him in the middle of March and when [Ms A’s] husband knew they took her to court. Later in the hearing when asked to clarify whether he had been charged with adultery, he said yes, of course, because they saw his photographs with the girl and they knew about his relationship with her. However, when the applicant was questioned further about whether he had been charged in relation to the adultery his evidence was vague and he said that he was not sure whether he had been charged yet and he suggested that he had not been sent the documents as he was not in Iran.
128. Also of concern: despite initially telling the Tribunal he believed he had been charged with adultery, the applicant’s brother, with whom he is currently living and who accompanied him to hearing to give evidence in support of his application appeared unaware of such charges or whether the applicant was of any interest to the authorities. As I put to the applicant in accordance with s 424AA, when his brother was asked whether the applicant had been charged with a crime in Iran, his brother referred to the incident that occurred when the applicant was warned by the Basij for wearing shorts but did not mention that the applicant had been charged with adultery by the authorities and told the Tribunal that he had no idea if he had problems because he was caught with a girl. The applicant has said that it is his problem not his brother’s and he subsequently gave evidence that he was not sure if he had been charged with adultery. However, having regard to the fact that the applicant’s brother attended the hearing to give evidence in support of the applicant’s claims of protection and that the applicant lives with his brother, I consider it is reasonable to expect that, if the applicant genuinely believed, he was, or might be, subject to adultery charges in Iran he would have told his brother about this problem.
129. After the applicant’s representative stated in oral submissions that it was not clear whether the applicant had been charged with adultery, the applicant was again asked to clarify whether he believed charges had been brought against him for adultery. His response was vague and evasive: he said according to the photos and text messages with [Ms A] when they came to his family house they told them something like this happened. I asked if he could clarify whether it was his evidence that both he and [Ms A] had been charged with adultery and there were currently court proceedings against both of them or just [Ms A]. He said the court proceedings are still going against [Ms A]. Asked to clarify whether there were court proceedings against him. He said not yet, they didn’t know, they didn’t receive anything about that yet. Asked to clarify whether [Ms A’s] husband had made a complaint to the authorities about him, he said he believed so but he was not really sure because he was outside the country.
130. Overall, I found the applicant’s evidence that he is of interest to the authorities in Iran in relation to adultery charges was vague and shifted over time. Although the pre-hearing submissions refer to [Ms A’s] husband complaining about the applicant to the police and the police visiting his family home, the applicant did not specifically mention these claims at the hearing. Further, although the applicant did tell the Tribunal that [Ms A’s] husband and his family went to the applicant’s family home ‘many times’ but was unable to adequately explain why he would continue to do so when the applicant was not there or identify, with any level of specificity, exactly how many times these visits occurred. I note that in the post hearing submissions it is stated that the applicant gave evidence that he might be charged with adultery because as the Iranian authorities summonsed [Ms A], it was natural to conclude that the applicant would also be summonsed sometime in the foreseeable future. The submissions suggest that the process for investigating adultery might take a long time but does not address how, if this was the case, court proceedings against [Ms A] had already commenced. I do not accept the applicant’s explanations for his shifting evidence about the question of whether he had been charged with adultery.
131. Furthermore, I consider the applicant’s evidence that [Ms A] has been charged with adultery to be unpersuasive. The applicant told the Tribunal he thought that [Ms A] was charged with adultery in mid march. I do not accept that the applicant’s case is assisted by the documentation (a marriage certificate and a document indicating [Ms A] was required to appear in the Family Court [in] April 2016). As I put to the applicant, the country information indicates that fraudulent documentation can be obtain in Iran and, in this context, I consider the documents can be given little weight.[11] In any event, even if the documents are considered on face value, they do not indicate that [Ms A] has been charged with adultery or otherwise corroborate his claims that [Ms A] or the applicant are of interest to the Iranian authorities in relation to charges of adultery. When questioned, the applicant said that the matter was initially heard in the family court and suggested that it was then transferred to a higher court. I consider the applicant’s evidence about the ongoing court proceedings against [Ms A] are vague and unpersuasive and nor am I satisfied the applicant has adequately explained why a criminal matter would initially be heard in a family court.
[11] Department of Foreign Affairs and Trade 2009, RRT Country Information Request IRN35547, 30 October <CX235773> (noting: DFAT are aware of cases where court documents, such as summonses, have been forged. With the right connections it may be possible to obtain documents for illegitimate purposes); Danish Immigration Service, the Norwegian LANDINFO and Danish Refugee Council 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 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. 6.1.1, p.68.
132. The applicant’s testimony to the tribunal about the evidence that he believed would be used to support a successful prosecution for adultery was also highly improbable, vague and unpersuasive. As I put to the applicant, DFAT assesses successful prosecutions for adultery are difficult, given the legal requirement for four witnesses.[12] The applicant suggested that the photographs proved he had an affair with [Ms A] but, as I put to him, the photographs that he provided to the Tribunal do not, on their face, establish they had an affair with [Ms A]. Even if it is accepted that these photographs (described above at para 33) all depict the same woman, I am unable to give these photographs much weight in assessing the applicant’s claims. The photographs do not demonstrate that the applicant had a sexual relationship with the woman pictured. It is entirely unclear when the photographs were taken or who they were taken by or what context they were taken or for that matter where they were taken. None of the photographs submitted by the applicant suggest that he has a sexual relationship with the woman pictured and, for the avoidance of doubt, I do not accept that the mere fact that the applicant is in possession of photographs of a woman in states of undress establishes that he has any kind of romantic or sexual relationship with her. While the applicant has suggested that these photographs appear on social media websites, as I put to him, the photographs that he has submitted do not indicate that they were published on social media. Furthermore, if the applicant was engaged in an affair with a married woman it is unclear why they would post incriminating photographs online for [Ms A’s] husband to discover. During the hearing the applicant stated he warned [Ms A] that posting photographs was dangerous, however this response is difficult to reconcile with the applicant’s evidence that he continued his relationship with [Ms A] online and by telephone whilst in Australia.
[12] DFAT Country Information Report dated 21 April 2016, [3.89].
133. The applicant also suggested that testing could be undertaken to establish he had a sexual relationship with [Ms A]. However, given he claimed to have had an affair with a married woman almost two years ago, it was unclear what the applicant thought might be tested: as I put to him, having regard to the passage of time and the fact [Ms A] was not a virgin, it was unclear how any tests would establish they had a relationship. The applicant’s representative subsequently suggested in post hearing that they might have kept ‘samples of clothing’ but I find this submission speculative, far-fetched and unconvincing.
134. I was also concerned that the applicant’s account of his relationship with [Ms A] was vague, improbable and lacking persuasive detail. He claimed that he knew she was married but they established a relationship by text messages. His evidence about where he met [Ms A] was vague and he had to be prompted to provide detail: they went to North Tehran and met in parks and side streets and, when asked about the physical side of their relationship, he added that sometimes they went to [Ms A’s] home when her husband was out. The applicant gave evidence that no one knew about their affair at the time he left Iran, but her husband discovered the affair after [Ms A’s] son answered a telephone call from the applicant and the [Ms A’s] husband heard an unidentified male voice on the phone and became suspicious. Questioned further about how [Ms A’s] husband identified him, the applicant suggested that the husband discovered photos of the applicant and [Ms A] on social media sites. As noted above, the photos provided by the applicant to the Tribunal do not show the applicant being physically intimate with a woman. Nor is it apparent from looking at the photographs when, or where, or by whom they were taken or that they were posted on any form of social media.
135. I found improbable and unconvincing the applicant’s evidence that, despite the fact he said he was in love with [Ms A], he did not tell he was leaving Iran but that, after they arrived in Australia, he maintained a long distance relationship with [Ms A] online and on the telephone. When I put to the applicant that it was difficult to understand why a young man who planning to remain in Australia permanently would continue to pursue a long distance relationship with a married woman in Iran, the applicant claimed that he and [Ms A] understood each other; he said that he would rather talk to [Ms A] than his mother; and, he reiterated that he loved her. However, I find it improbable that if the applicant was, as he claimed, in love with [Ms A], that they never discussed the future of their relationship and that he left Iran without informing her of his plans to do so. While I have considered the applicant’s claims that he and [Ms A] understood each other, I found his explanation about why he decided to maintain a long-distance relationship he told the Tribunal had ‘no hope’ after he arrived in Australia improbable and unpersuasive. These concerns are not resolved by the post hearing submissions which repeat the applicant’s claims that he did not tell [Ms A] he was going to seek protection and never talked about what would happen to the relationship because the relationship was sexual in nature and he was selfish in relationship and I consider this characterisation of the relationship is difficult to reconcile with the applicant’s evidence at the hearing that he and [Ms A] loved and understood each other.
136. Furthermore, I note that when he applied for a protection visa, the applicant did not describe himself as being in a de-facto or married relationship. However, when he appeared before the Tribunal, when asked whether he would describe himself as being in a relationship he said that he would and he referred to [Ms A] as his girlfriend. He sought to explain the discrepancy between the way he described his relationship status to the Tribunal with the way he described his relationship status in his protection visa application by stating that the protection visa application for asked whether he was married or in a de-facto relationship and, because he was having an extra-marital affair, he did not mention this fact because he thought the question was about marriage. I have considered this response as well as the pre-hearing submission which notes that in the interview with the delegate the applicant ‘stated he has a de-facto relationship with a girl in Iran’. While my concern about this issue would not, of itself, support an adverse credibility finding, I note that that while the applicant mentioned a girlfriend in the interview with the delegate, he did not refer to the fact she was married but instead complained that he had a girlfriend but he was only was unable to go to parks and parties with her. The applicant has said he did not mention the fact she was married because it was not a problem at the time, but, as I discussed with, when he told the delegate that he couldn’t go out with his girlfriend it sounded like that it was one of the reasons he was frustrated by the lack of freedom in Iran, whereas his evidence to the Tribunal indicated that it was because they were having an extra-marital affair.
137. My concerns about the applicant’s credibility as a witness are deepened by the fact that, in my assessment, the applicant did not fear harm at the time he left Iran or when he applied for a protection visa, some four months later, in October 2014. The applicant’s evidence about why he first applied for a protection visa was not persuasive. Although during the course of the hearing he referred to problems he had in Iran because of his Arab ethnicity and the lack of freedom for young men in Iran, when asked whether he had any problems at the time he left Iran, he gave evidence he did not have any problems and, in my assessment, his own evidence indicates that he has not suffered serious harm or significant harm in the past in Iran. I noted that when he applied for protection in October 2014 he made claims that he would be subject to serious harm or significant harm if he returned to Iran. When I asked on the basis he made these claims given he said he had no problems when he left Iran, he said he mentioned that because of the persecution that Arab ethnic people in Iran face when he applied for protection. However, as I put to the applicant, it is difficult to reconcile his claim that he fears persecution because of his ethnicity with his evidence that he had no problems at the time he left Iran. The applicant reiterated his claim that there was an incident with the Basij and that, as a young man, he didn’t have freedom to live in his country like any other man. However, as I put to the applicant, on one view of his evidence, he was able to work and travel in and out of Iran and live his life there.
138. Ultimately, while I am prepared to accept that the applicant is a young man of Arab ethnicity who prefers life in Australia to that in Iran, for reasons that follow I am not persuaded that the applicant had a genuine fear of harm at the time he left Iran and nor am I persuaded that he was afraid of returning to Iran at the time he applied for a protection visa. This leads to the conclusion that the applicant applied for a protection visa, even though he did not have a genuine fear of harm in Iran, because he decided he would prefer to live in Australia. The applicant has claimed that new circumstances have arisen and that he now fears harm because his affair with a married woman has been discovered but, in considering the credibility of these claims, I consider it is relevant to have regard to my assessment that the applicant lodged a protection visa because he wanted to extend his stay in Australia, not because he fears harm in Iran. While I have considered the fact that I have accepted much of the applicant’s evidence about his experiences as a young Arab man in Iran, I remain concerned that he overstated the problems he had faced and would face as a young Arab man in Iran and that, in the post hearing submissions, he maintained that he feared harm at the time he left Iran. While I have considered the applicant’s evidence that a new problem has arisen, as noted above I have significant concerns about the credibility of these claims. In this context, my concerns about the applicant’s credibility are reinforced by the fact that he lodged a protection visa application notwithstanding the fact that, for the reasons that are set out above, I am of the view he had no fear of harm in Iran, either at the time he left Iran, or when he lodged his protection visa application four months after he arrived in Australia

139. My concerns about the applicant’s reliability as a witness are deepened by the fact that, during the hearing he appeared willing to change his evidence in response to the Tribunal’s concerns. For example, when asked (twice) whether the information he provided in his visitor visa application was true the applicant gave evidence that it was. However, as I put to him in accordance with the procedure in s 424AA, in his visitor application he said he took three months leave from his job in Iran and planned to return to Iran, whereas he told the Tribunal he quit his job and did not intend to return to Iran. The applicant conceded that this aspect of his evidence was not true but said he had to say this because otherwise he would not have been granted the visa and that he had to leave Iran due to his problems and his fear of harm (he perceived he would be persecuted by the Iranian authorities because of his ethnicity and the fact that he was a young person with tendencies towards a western lifestyle). I have considered the applicant’s explanation, but I remain concerned that his admission that the information he provided with respect to his visitor visa application was only offered after he was asked to respond to the specific inconsistencies in his evidence and before that time he maintained the information was true. I am further concerned that to the extent the applicant claimed he had to lie on his visitor visa application to escape the problems and/ or persecution in Iran, that this evidence lacks credibility because, for the reasons set out above, I do not accept that, at the time he left Iran, the applicant had a genuine fear of being harmed in Iran for any reason.
140. Overall, I found the applicant’s evidence about his relationship with [Ms A], the circumstances in which it continued after he travelled to Australia, and the consequences of the relationship being discovered by [Ms A’s] husband to be vague, lacking in persuasive detail, and highly improbable. His claims that he will be subject to adultery charges lacked detail and internal consistency and shifted over the course of the hearing. His claims that [Ms A] is also subject to adultery charges lacked persuasive detail. For the reasons that I have set out above, I do not accept the applicant’s case is assisted by the documentation he has provided in support of his claims. While I have considered the brother’s evidence he cannot be said to be a disinterested witness and, as discussed with the applicant, it might be expected that he would be supportive of the applicant’s desire to remain in Australia. Ultimately, to the extent that the evidence of the witness brother was consistent with that of the applicant, I consider that limited weight can be placed on this evidence and it does not overcome my significant concerns about the credibility of the applicant’s claims.
141. Considered cumulatively the concerns the Tribunal holds about the applicant’s credibility lead it to find that his claims that he is now at risk of harm because his affair with a married woman has now been discovered are not credible. On the evidence before me, I am not satisfied that, at the time he left Iran, the applicant was having an affair with a married woman or that this relationship continued online and on the telephone after he arrived in Australia. On the evidence before me, I am not satisfied that the applicant was involved in an extramarital affair with a woman called [Ms A], it follows that I do not accept that the woman’s husband discovered their affair, or that the husband has visited his family home on many occasions, or that [Ms A’s] husband complained to the police about the affair, or that the police visited the applicant’s family home, or that the husband or his tribe or [Ms A’s] family will want to harm him if he returns to Iran or that the applicant or [Ms A] are of interest to the Iranian authorities because they have been charged with adultery or because they had illicit relations. I do not accept that the applicant ever had an extramarital affair as claimed and I reject in their entirety his claims to face harm for this reason.
Other matters - returnee from the West – failed asylum seeker – Arab ethnicity
142. I have rejected the applicant’s claims that he had an affair with a married woman in their entirety. Accordingly, I find there is no real chance he will be of any adverse interest to the authorities or any other person or family/tribal group in relation to this affair. Although it is unclear why the Iranian authorities would identify him as a failed asylum given that he travelled to Australia on a valid passport issued in his own name, out of an abundance of caution I have considered the possibility that the circumstances in which the applicant returns to Iran may cause the Iranian authorities to assume that he has applied for asylum in Australia. As I put to the applicant, the country information indicates that many Iranians travel abroad and there is nothing to suggest that an interest in, or links to a western country would by itself put a person at risk.[13] As I discussed with the applicant, I have read reports of Iranian asylum seekers who had travelled to Australia by boat to seek asylum voluntarily returning to Iran but I was not aware of any reports that they had been punished by the Iranian authorities for having travelled to Australia or for having sought asylum in Australia. [14] Furthermore, as I put to the applicant, DFAT reports that:
Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran. Officials provide assistance to Iranians who wish to voluntarily return to Iran, even if they left irregularly. Strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee—largely because most failed asylum seekers leave Iran legally.[15]
[13] DFAT Country Information Report: Iran dated 21 April 2016 [5.28].
[14] ‘Millions spent on ‘voluntary return’ of asylum seekers’, 5 August 2014, Australian Lawyers Alliance, < 30 June 2015.
[15] DFAT Country Information Report: Iran dated 21 April 2016, [5.28], [5.33]-[5.35].

143. I put to the applicant that DFAT’s anecdotal observation at airports, was that voluntary returnees won’t attract much interest from authorities. The applicant said a short time ago someone returned from America and now she is in jail – he didn’t think she was forced to leave the country but when she arrived she was sent straight to jail. I advised the applicant I was not aware of the particular case to which he was referring but I acknowledged that there were reports that indicated that returnees who were otherwise of adverse interest to the authorities were political dissidents or had other problems being mistreated. However, as I put to the applicant, the available country information does not support the proposition that a person is at risk of harm simply because he travelled to a western country and sought asylum.
144. The applicant said he had no right to accept any other nationality other than the Iranian nationality. Now he had been away for two years they would believe he applied for another nationality. I noted that, even if I accepted that he would subject to questioning or some degree of monitoring, the available country information didn’t indicate that this would rise to the level of serious harm or significant harm. He said they wouldn’t ask him: they would decide straight away. He said before they left they told him that he was leaving and never coming back. I have considered the applicant’s account of his conversations at the airport when he was leaving Iran and his claims that because he only acquired citizenship recently, the Iranian authorities will be suspicious he was trying to acquire nationality elsewhere.
145. I find that, at the time he left Iran, the applicant had no profile with the Iranian authorities other than that of an ordinary Iranian citizen. I note that DFAT reports that 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.[16] The vast majority of people questioned would be released after an hour or two.[17] Earlier advice from DFAT also indicates that they are not aware of any specific information to suggest that the act of applying for asylum would, of itself, give rise to a risk of mistreatment.[18]
[16] DFAT Country Information Report dated 21 April 2016, [5.28], [5.33]-[5.35].
[17] DFAT Country Information Report dated 21 April 2016, [5.28], [5.33]-[5.35].
[18] DFAT Country Information Report No. 10/82, 22 December 2010, CX255525
146. I place weight on DFAT’s country assessment. As I put to the applicant, the country information does not suggest that Arab Iranians, including those who had travelled out of Iran for a period of time, would be subject to questioning at the airport simply because of his Arab ethnicity and/or because of the length of time he has been abroad. I do not accept that, having regard to what I have accepted of the applicant’s claims, that he will be singled out for questioning because of his ethnicity, and/or the fact he previously held [Country 1] citizenship, and/or the time he has spent abroad. Further, even if the applicant were to be questioned for a brief period upon his return to Iran and subject to monitoring for a period of time after he is returned, I do not accept that there is a real chance he will be subject to serious harm or significant harm during these processes and nor, having regard to my findings about his claims and circumstances, do I accept that the Iranian authorities will have any ongoing interest in the applicant.
147. On the evidence before me, I am not satisfied that there is a real chance now or in the foreseeable future that he would be subjected to serious harm for being a member of the particular social group ‘failed asylum seekers’ or ‘failed asylum seeker returning from Australia’ or ‘failed asylum seekers of Arab ethnicity’. Nor do I accept that there is a real chance that the applicant will be imputed with adverse political opinion for seeking asylum in Australia or spending time in Australia. Based on the country information before me, I am not satisfied that there is any real chance, as opposed to one that is remote, far-fetched and fanciful, that the fact the applicant has been in Australia and applied for asylum here would give rise to a real chance that the applicant would be subject to serious harm by the Iranian authorities. I find that there is no real chance that the applicant would be persecuted for reason of being a returnee from Australia and/or being identified as a person who has sought asylum in Australia. Nor, on the evidence before me, do I accept that there are substantial grounds for believing that there is a real risk that he will suffer significant harm for any of the reasons claimed.
Cumulative consideration of claims - conclusions
148. I have carefully considered all the claims presented by the applicant. Having regard to the available country information and my findings of fact and having considered the applicant’s claims individually and cumulatively, I am not satisfied that there is a real chance that he will face serious harm for reason of his race, actual or imputed political opinion, actual or imputed religion or membership of a particular social group, being 'failed asylum seekers' or returnees from the west or young men of Arab ethnicity, if he returns to Iran. In view of my findings of fact, I am not satisfied that the applicant has a well-founded fear of Refugee Convention related persecution for any of the reasons he has claimed. Accordingly, I find there is no real chance that he will be subject to serious harm for one or more of the reasons set out in the Refugees Convention or for any other reason if he returns to Iran now or in the reasonably foreseeable future. The applicant does not satisfy the criteria in s.36(2)(a).
149. Having considered the applicant’s claims singularly and cumulatively, I find that the applicant does not meet the criteria for complementary protection criteria. 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.[19] In my view of my findings of fact and the available country information, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Iran now or in the reasonably foreseeable future. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iran now or in the reasonably foreseeable future. Accordingly, I am not satisfied that 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 he will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. The applicant does not satisfy the criterion in s.36(2)(aa).
[19] 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].
CONCLUSION
150. 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).
151. 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).
152. 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
153. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Frances Simmons
Member

[2016] AATA 4869

25 August 2016

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