1506144 (Refugee)

1506144 (Refugee) [2018] AATA 287 (12 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506144
COUNTRY OF REFERENCE:                  Iran
MEMBER:Sean Baker
DATE:12 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 12 January 2018 at 11:22am

CATCHWORDS
Refugee – Protection visa – Iran – Ethnicity – Faili Kurd – Imputed political opinion – Anti-regime – Particular social group – Disabled persons – Failed asylum seeker – Victim of assault and verbal abuse
LEGISLATION
Migration Act 1958, ss 36, 499
Migration Regulations 1994, Schedule 2
CASES
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
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

[The applicant] is a citizen of Iran. He is of Kurdish Faili ethnicity and Shia Islam religion. He claims to fear harm because he is disabled and has been denied work and will be denied the capacity to subsist, because of his ethnicity and because he is imputed with an anti-regime political opinion.
The delegate refused the application. The delegate accepted much of what the applicant claimed, but found that the applicant did not have a real chance of suffering serious harm on return to Iran, and that there was not a real risk that he would suffer significant harm. The applicant did not provide a copy of the delegate’s decision to the Tribunal.
A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) into account to the extent that they are relevant.
The issues in this review are whether the applicant has a well-founded fear of being persecuted in Iran, and, if not, whether 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and nationality
To the Department the applicant provided originals of his Iranian Shenasnameh, National Identity Card, Iranian driver’s licence, military service exemption card, and his [qualification] from [a named university]. On the basis of this information and with no evidence to the contrary I accept that the applicant is who he claims to be and that he is a national of Iran, which is also his receiving country.
There is no evidence before me to indicate that he has a right to enter and reside in a third country. I find he does not have a right to enter and reside in a third country.
The applicant’s claims and evidence
The applicant’s claims are contained in a statutory declaration he made [in] August 2013 and claims he made during his interview with the delegate [in] February 2015 and can be summarised as follows:
·He is a citizen of Iran by birth, his father being an Iranian citizen and his mother having acquired Iranian citizenship through marriage;
·He is of the Faili Kurdish ethnicity;
·In 2010 in Kashan, he was with his girlfriend and was stopped by the police. When the police found out they were not married they took them to the police station. The applicant was verbally abused and held for one day before being released;
·Three months later in 2011, he was with his [relative] and they were sworn at and beaten by a police officer for being out late at night;
·The applicant believes the authorities did these things to him as they viewed him as having an anti-regime political opinion and he fears being harmed on this basis;
·He has experienced difficulties in his life due to being born with [a disability]. As a result of this disability, he was exempted from military service, and was unable to sit tests to qualify for employment opportunities. Even if he had been able to sit the test he does not think he would have been given employment as the economic situation in Iran is very poor;
·He then worked for his father in a [business] from 2011 until November 2012 and from November 2012 he worked in a store across the road selling [goods]. His family were in a very difficult financial position when he was in Iran;
·He believes he was unable to access employment opportunities as Faili Kurds are discriminated against;
·In 2012 he began to suffer depression;
·He petitioned the local [government] office in regards to discrimination against disabled job seekers. Following his last visit to the [office] in 2012, he was removed by the police, and after this was harassed by the police repeatedly;
·In April 2013 he fled Iran for Australia;
·After his departure his father received unusual messages which his father suspected meant the authorities had tapped his phone, and the applicant believes this is because he has sought asylum in Australia, those who have returned to Iran from Australia have been harmed by the authorities on arrival;
·After he arrived in Australia his brother came to Australia but departed for Iran in September 2014 after their father died and their mother was in ill-health;
·His brother was questioned about the applicant at the airport, and again by the authorities in Ilam.
·The applicant fears he would be denied employment for reasons of his ethnicity as a Faili Kurd and his disability and he fears being denied basic services as a Faili Kurd in Iran. He fears being harmed as a person with an imputed anti-regime opinion. He claims to fear being subjected to cruel, inhuman and degrading treatment on return.
The applicant attended an interview at which he gave evidence consistent with the above claims.
At interview and after the interview the applicant’s then representative made submissions.
The delegate refused the application and the applicant applied to the Tribunal for review.
The applicant requested that the hearing be postponed because he had decided to appoint a solicitor and the solicitor was busy on that day and the solicitor would need 4-6 weeks to familiarise himself with the case. Given the lack of detail about his nominated legal representative and their inability to attend the hearing in the requests, and that the requests were made approximately a month before the hearing date, I decided to refuse the request. He contacted the Tribunal again on 3 May 2017 and said that he had not received his entry interview from the Department and needed more time to prepare for the hearing. He did not clearly explain why this was relevant or necessary for him to have prior to the hearing. Despite being advised that he could do so, he did not raise this as a concern at the hearing, nor indicate how not having a copy of his entry interview had disadvantaged him, nor did he seek additional time to provide further information after the hearing.
The applicant attended the hearing on 17 May 2017. At the hearing he provided copies of his identity documents. He has not provided anything further to the Tribunal.
At the outset of the hearing the applicant raised concerns with the interpreter, claiming that the interpreter had been the same interpreter he had in his Departmental interview and that he had had concerns with the standard of interpretation. The Tribunal was able to source another interpreter via phone and the hearing proceeded. The applicant did not raise any concerns about the standard of interpretation with the second interpreter.
Consideration of claims and findings
Nationality and ethnicity
On the basis of his evidence and the documents he has provided I find that the applicant is a national of Iran. He confirmed at the hearing that he was a citizen of Iran by birth, his father being Iranian, and that his mother had gained Iranian citizenship through his father.
He has not claimed, nor is there any evidence before me to indicate that he has a right to enter and reside in any third country. I find he does not have such a right.
The applicant has claimed to be an ethnic Faili Kurd. The interview and hearing were conducted in Kurdish and there is no evidence to suggest otherwise. On the basis of this and his evidence I accept that the applicant is an ethnic Faili Kurd.
Disability
The applicant claims to have a congenital disability, [which] he showed me at the hearing. [Sentence deleted.] I accept that the applicant has a [disability]. I accept, on his evidence and the documents he has provided, that this led to an exemption from military service.
I note that the applicant has been able to be employed in a range of jobs both in Iran and here. Whilst not minimising his disability I note that the applicant has been able to overcome any physical difficulties to obtain work.
Stopped by police in 2010 and 2011
The applicant claims to have been with his girlfriend in 2010 in Kashan when he was stopped by the police, when it was discovered that they were not married they were taken to the police station. The applicant was verbally abused and held for one day before being released, which I accept occurred for the reasons later in the decision. At hearing the applicant claimed that the police gave him a warning letter to tell him he should not repeat this, which I do not accept occurred for the reasons later in the decision.
The applicant claims that three months later, in 2011, he was with his [relative] and they were sworn at and beaten by a police officer for being out late at night. Again, I accept on the country information that this occurred.
The applicant indicated that prior to these events, he had not had any difficulties with the authorities.
The applicant’s statement includes a claim that the authorities did these things to him as they think he has an anti-regime political opinion. At hearing he said that it was a moral policy, and the problem for him was that he had signed that paper and they could recognise him. He said they had given him a warning when they detained him the first time, and then the second time with his [relative] he was not sure if the police had recognised them but they abused them and took them to a different station. I asked him to clarify this and he said that the second time they had caught them and took them to a station and the applicant was shouting that they had not done anything. He said he did not know why this had happened. He said they had asked him for his name and family name.
Having regard to country information in relation to moral policing and the impunity of police and other authorities I accept that in 2010 the applicant was stopped by the police when with his girlfriend in Kashan, that he was verbally abused and held for one day before being released, that in 2011 he and his [relative] were sworn at and beaten by a police officer for being out late at night. I do not accept that the police believed that the applicant has an anti-regime political opinion, or that these two events, even together, would lead to the applicant being considered anti-regime. The applicant’s evidence has not established this. I find that the police on the first occasion detained the applicant for an infraction or perceived infraction of the moral code, as he himself said, rather than because they suspected the applicant of an anti-regime political opinion. I find that he was sworn at and beaten by the police officer because the authorities in Iran act with impunity and not for any reason connected with his claims. I do not accept that the applicant was assaulted or taken to another police station on the second occasion because he was recognised by the police, the applicant has not established this and only claimed this at the hearing in a speculative sense.
For the reasons that follow I do not accept that the applicant was given a warning letter on the first occasion. As below, I find that his failure to mention this in his statutory declaration signifies that this did not happen and that he is seeking to address perceived problems in his claims over time. For the same reason, that he did not mention it in his statutory declaration, I do not accept that the applicant was taken to a police station and they took his name on the second occasion – I find, as described in his statutory declaration, that he was assaulted and sworn at by the police officer but that that is all that happened.
Denied employment due to his disability
The applicant then completed his university studies, completing a [degree]. He was exempted from military service due to his disability and he then sought a job. In his statement he said he was unable to sit tests to qualify for employment opportunities and that even if he had been able to sit the test he does not think he would have been given employment as the economic situation in Iran is very poor. He was unable to find a job and worked for a time with his father in his [business] and then in a [retail] store.
At hearing the applicant said that he thought there had been a misunderstanding in the interview with the delegate, and it came across that he had one small problem but this was not true, he had had a big problem. He explained that the financial situation was a problem, but that was only one of the reasons he left, he had other problems. He said that he had been able to sit tests for employment, but there was only a 3% allowing him to apply or enrol. I asked him to clarify and he said he was able to apply but that he had only a limited chance. He said he had sat 3 or 4 tests but was unsuccessful in those. He said that there was only a 3% where he had the rights, and the disabled people before him had had more opportunities, his chance was very low.
He confirmed that he had worked in his father’s [business] and then in [a retail] store – he said that when they started the [second, retail] business his father closed down the [first] business. He said that the income was very low and they were in a difficult financial situation. He said when they closed the [second] business the family lived on his father’s retirement salary. He said his family in Iran were still supporting themselves on his father’s retirement salary after his father’s death in September 2014. He said his sister is recently divorced and she is seeking work but it is hard to find a job. He said his brother is not working because he is depressed and has problems.
I asked the applicant why he thought he was unable to access employment opportunities. He said that he was not saying he didn’t have a lot of opportunities, but, because of being disabled it prevented him from doing a lot of things and in general the situation was very hard. I asked if there were any other reasons he thought he had not had employment opportunities and he said it all came back to the big problem, to being disabled.
I accept that the applicant was exempted from military service because of his disability. I accept that he sat several tests to gain jobs but was unsuccessful. I do not accept that he was denied employment because of his disability – the applicant at hearing explained that his problem was much more fine grained – there were not enough positions for disabled people, rather than he was denied opportunities. I find that the applicant was unsuccessful in gaining work because he was not successful at the tests he sat and because, as he admitted, the extremely poor economic situation in Iran means many people are unable to find employment.[1]
[1] World Bank, Iran Overview, April 2017, World Bank data, Unemployment, youth total (% of total labor force ages 15-24) (modelled ILO estimate), March 2017,
The applicant then worked with his father in the [first] business and then the [second business].
In Australia he has worked in a [firm] for a short period.
I do not accept that the applicant was denied employment or discriminated against in any way in relation to employment because of his disability. I find that his inability to gain the jobs he would have wished is a problem common to people, especially young people in Iran. I further note that he was able to and did work with his father, and was able to subsist during his time in Iran.
Mental health
In 2012 he suffered depression. At hearing he said that he got treatment for this, he had medication. He said then he was in Australia when his father died in September 2014 and he had depression again and he went to a psychologist whom he saw once or twice but it didn’t really work. He was physically ok but he was not sleeping. They said there was a problem mentally, not physically. They tried to make him better but it didn’t really do anything. He said at the moment he took [tablets] but he didn’t think they were for any mental issues, it was for something like [a medical condition].
I accept that the applicant suffered depression whilst in Iran in 2012 for which he received treatment, and that the death of his father precipitated a second period of depression whilst he was in Australia for which he received treatment. However, I do not accept that this depression has affected his ability to recall events. The applicant was able to discuss the matters in his written claims in detail at the hearing. The difficulties with his evidence below I do not accept are in any way connected to his depression.
Protests at the [government] office and the warning letters
The applicant claimed to the delegate that he petitioned the local [government] office in regards to discrimination against disabled job seekers. During his last visit to the [government] office in 2012, he was removed by the police, and after this was harassed by the police repeatedly who would question him and then later forced him to sign a second warning letter.
At hearing the applicant said that he had gone to the [government] office and spoke up but they didn’t care. Then the second time, after he had been going through a hard time, he spoke up again and said silly things about the Iranian government and Islamic rules, and people were looking at him. Then they threatened that they would call the police and the police came and threw him out. He realised there were some people taking videos of him, and when the police found out they took that person’s phone and took him out. The applicant said after he had been thrown out they did nothing special to him.
He said that after that a few times, maybe about 4 times, the authorities came to his house and put him in a car and asked him all sorts of questions. They gave him a warning letter to sign. At first he did not sign it. I asked if anything had happened to him because he had not signed it and he said no, they just threatened him and made fun of him. Then the last time they came to his house he signed the documents.
I asked if they had given him a warning letter or charged him with anything when they had taken him out of the [government] office and he said they had not. I noted that this seemed odd if the authorities were unhappy with his behaviour at the [government] office that they had not detained him, given him a warning letter or charged him with anything. He said that maybe they didn’t want to do this in front of other people. I noted that the country information, and his evidence, was that the authorities act with impunity in Iran and so I did not think that would be a reason they would not do these things to him. He said there were a lot of people there and they were taking videos and it would be bad for the Iranian government.

He said that after he had signed the warning letter and the visits of the authorities to his home he was worried and he just wanted to leave Iran. He confirmed that he wanted to leave because of this protest he made. He said he made the protest about three months before he left Iran.
I noted to the applicant at the hearing that his evidence at the hearing had been inconsistent with his statutory declaration in important respects, in that in his statutory declaration, which I noted in other respects was quite detailed, he did not mention protesting at the government offices, he did not mention being given warning letters by the authorities either in 2010 or after his protests at the [government] office, he had not mentioned the police taking him out of the Government office or following up by questioning him outside his home and threatening and belittling him or forcing him to sign the second warning letter, and he had not mentioned that these formed any part of the reason why he fled Iran. I noted that this caused me some concern because I would expect such important information to be at least mentioned, particularly as the statutory declaration was prepared with the assistance of a lawyer and interpreter, but he did not include these details until later in the process and I noted that this might lead me to doubt that these things happened and that his claims had changed over time to address problems identified with his claims.
In response the applicant said that he had lived in a state of fear and that he had come here with a disability and started to talk about his rights. The fear was still with him and he could not break it. He did not know what was going to happen to him and he feared being sent back to Iran. Later he said that it had taken him a long time to get up the courage to say what had to be said.
I have had regard to the applicant’s statutory declaration, to what he said at the interview with the delegate and to what he said at the hearing. I note that at the opening of his statutory declaration he states that it is only a summary of his claims and he will provide further information at his interview with the deleagte.
I have carefully considered all of this information but I find I am not convinced by his explanations for why he did not include these key details in his statutory declaration. I accept that the applicant was and remains fearful, but as he notes in his statutory declaration, he had by that time given information about his claims in his entry interview, and if he had any fears or concerns about the process or what he should include in his statutory declaration, he had the assistance of his lawyer and an interpreter to help him with this. Despite the comment at the beginning of his statutory declaration that it is only a summary of his claims, he provided significant detail about the events in 2010 and 2011 and I am not convinced that he would not have included such important information as the protest at the [government], being removed by the police and the warning letters in his statutory declaration as well. At the hearing, he claimed that , these matters had become an important, if not the important factor which motivated him to depart Iran. I appreciate that the applicant provided information about the protests at the [government] office at the interview with the delegate, but I do not accept that he would not have mentioned such important information earlier in his statutory declaration if it had happened.
Furthering my concerns with these claims, I found his explanation of why the police would not have given him a warning letter or charged him with anything when they had taken him out of the [government] office to be implausible.
These concerns firstly lead me to find that the applicant was not given a warning letter in 2010 when he was detained for an infraction of the morality code, because he did not mention this in his statutory declaration.
These concerns further lead me to find that the applicant did not protest at the [government] office, he was not removed on the second time by the police or other authorities, and was not filmed protesting. I find he did not make comments about the regime and Islamic rules.
I find therefore that the authorities did not come to his house and put him in a car, questioned him, threatened him and made fun of him and forced him to sign a warning letter. I find he was not harassed by the police repeatedly.
I therefore do not accept that these matters were a reason for him to depart Iran.
Messages to his father
The applicant claims that after his departure his father received unusual messages which his father suspected meant the authorities had tapped his phone, and the applicant believes this is because he has sought asylum in Australia, those who have returned to Iran from Australia have been harmed by the authorities on arrival.
At hearing he said that when they called his father they mentioned his name and were loud and angry, it was threatening. He said they had called his father but they had not identified themselves, they had just called and asked for him and were talking rudely to his father. He said his father received these calls after the applicant had come to Australia, his father had not told him straight away as he did not want the applicant to be worried. I asked why the authorities would not call and identify themselves and explain what they wanted – it seemed strange to call his father and just ask for him and talk rudely but not explain who they were or what they wanted. He said he was an innocent person, he had not done anything big for them, for them it was just threats and worry. He said they did have information that he had left Iran, they said he left Iran, he fled, they did tell his father that they had information that your son has fled Iran and later on it is up to us. I asked how many calls his father had received and he said he thought it was one or two.
I have thought carefully about this claim. The claim appears to have changed somewhat from his statutory declaration in which he states “My father suspects that the authorities have tapped his phone due to unusual messages left on our phone following brief periods in which the phone line was not operating.” I consider that this is materially different from what the applicant claimed at the hearing where he indicated that there had been people who had asked specifically for the applicant. If this was the case I would expect the applicant to identify this in his statutory declaration when describing the phone calls. I find that there is a material difference in these claims which causes me concerns about whether the applicant has altered his claims over time. I do not accept that this is because his father did not wish to worry him and only provided the details later. Given this and my concerns and findings above, I do not accept that the authorities have called the applicant’s father seeking information on the applicant. I do not accept that any ‘unusual messages left on their phone’ have any relationship to the applicant or his claims.
His brother
After he arrived in Australia his brother came to Australia but departed for Iran in September 2014 after their father died and their mother was in ill-health. His brother was questioned about the applicant at the airport, and again by the authorities for two months in Ilam.
At hearing the applicant said that because of his disability, his brother came to look after him. He said that then when his father died in [an] accident and his mother was not coping, his brother returned to Iran to look after her. He said that when his father passed away the Iranian authorities gave his brother travel documents and when his brother came back to Iran they talked to his brother about the applicant and interviewed his brother. He clarified that they had had a chat with his brother in the airport for quite a long time, and after that, he was not sure how long after, they called him on the telephone and said you need to come to the police station. At the police station they just scared him and threatened him and his brother hid this from him and his brother has his own depression because of that. I asked if he was saying that his brother had depression because the police questioned him and he said that was right, the way they talked to him about that. I asked if he had been questioned at the police station once and the applicant said he was not sure exactly, it could have been one or two or three times. I asked if anything had happened to his brother or the rest of his family since then and he said it had not. I noted that his brother had departed some years ago, and he had said nothing further had happened to his family, so I asked if he thought the authorities were still interested in the applicant. The applicant said that this was a question he had asked himself and he did not even know.
I accept that the applicant’s brother travelled to Australia, and that this may have been in part to assist the applicant. I accept that his brother returned to Iran in September 2014 after their father was killed in [an] accident.
I accept that the applicant’s brother may have been questioned at the airport, but was then released, and that after this, perhaps as much as some months later, he was asked to come to the police station to answer questions. I accept that the applicant’s brother may have been threatened during this questioning. I accept that the authorities may have asked about the applicant, but I find, given my findings above, that this was only because he has remained outside Iran for a considerable time now, and not for any other reason. Whilst I am willing to accept that his brother is suffering depression, I am not convinced and do not accept that the questioning or threats caused or precipitated his brother’s depression, rather I find that his depression is more likely to relate to their father’s death. I find, on the applicant’s evidence, that the authorities have not done anything further to his brother or the rest of his family in the three years since his brother returned.
Does the applicant have a well-founded fear of being persecuted for a Convention reason on return to Iran?
On the basis of the findings above, I make the following findings in relation to [the applicant].
·     I accept that he is an Iranian national of the Faili Kurdish ethnicity, who lived most of his life in Ilam except for attending university. I accept that the applicant has a [disability]. I accept, on his evidence and the documents he has provided, that this led to an exemption from military service.
·     I accept that he was stopped by the police when with his girlfriend in 2010 in Kashan and detained for one day and then released. I do not accept that he was given a warning letter. I accept that he was assaulted and sworn at by a police officer when out late with his [relative] in 2011, but I do not accept that he was taken to a police station and had his name taken.
·     I do not accept that the applicant was denied employment or discriminated against in any way in relation to employment because of his disability. I find that his inability to gain the jobs he would have wished is due to the economic situation in Iran. I find that the applicant was able to subsist whilst in Iran and that his capacity to subsist was not threatened.
·     I accept that the applicant had a period of depression in 2012 and again when his father died in September 2014. I accept that he may be continuing to experience symptoms of depression but I note that he did not indicate he was currently seeking treatment for this nor that it had an impact on his life other than the claim that it made it difficult for him to recall events, which I have rejected.
·     For the reasons above I do not accept that the applicant protested at the [government] office, was removed on the second time by the police or other authorities, and was filmed protesting. I do not accept that he made comments about the regime and Islamic rules. I do not accept that the authorities came to his house and put him in a car, questioned him, threatened him and made fun of him and forced him to sign a warning letter. I do not accept that he departed Iran for these reasons.
·     I do not accept that after his departure the authorities called his father’s telephone and asked for the applicant or threatened his father in any way. I do not accept that any ‘unusual messages left on their phone’ have any relationship to the applicant or his claims.
·     I accept that the applicant’s brother returned to Iran from Australia after their father died, that he was given travel documents by the Iranian authorities, that he was questioned at the airport and again on one occasion in Ilam about his return and about the applicant. I am willing to accept that the applicant’s brother may have been threatened by the authorities whilst being questioned. I do not accept that this led to or was part of the applicant’s brother developing depression. I am willing to accept that the authorities asked his brother about the applicant but I find that this was solely because the applicant had been outside Iran for a considerable period of time.
Having made these findings, I have considered whether, if he returns to Iran, the applicant will suffer persecution.
I find that the applicant would return to Iran as an Iranian citizen of Faili Kurdish ethnicity, who would be returning to his home area of Ilam where his family lives. I accept that the applicant is disabled as described above. I accept that he has been detained by the police once in 2010 and was assaulted and sworn at by a police officer in 2011. I accept that he has had periods of depression in the past, but I note that he has been able to access treatment for this in Iran. I accept that he has had difficulty finding employment in Iran but was able to find employment. I find also that his family are being supported on his father’s pension which is continuing after his father’s death.
As his brother, I find he would be provided with travel documents to return. I accept that the manner of his return would lead to or be likely to lead to the authorities being aware that he was a failed asylum seeker.
Treatment as a Faili Kurd
The applicant fears he would be denied employment for reasons of his ethnicity as a Faili Kurd and his disability and he fears being denied basic services as a Faili Kurd in Iran. He fears being harmed as a person with an imputed anti-regime opinion. He claims to fear being subjected to cruel, inhuman and degrading treatment on return. The applicant believes he was unable to access employment opportunities as Faili Kurds are discriminated against.
The country information in relation to Faili Kurds, which I discussed with him at the hearing, indicates that Faili Kurds who are citizens have access to employment, education and health care on the same basis as other citizens.[2]
[2] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014.
3.6 Following discussions with a range of credible non-government sources, DFAT is not aware of cases where Faili Kurds who are also Iranian citizens have faced adverse attention specifically because of their ethnicity. Contacts are not aware of Faili Kurds not approaching Iranian authorities due to fear of mistreatment, although they were not prepared to rule this out.
…
3.53 Faili Kurds in Iran who are Iranian citizens can access services on the same basis as other Iranian citizens. They appear to face little to no discrimination in access to services on the basis of their ethnicity or religion.
…
3.62 Faili Kurds who are Iranian citizens have access to employment on the same basis as other Iranian citizens.
…
3.66 DFAT has been told that pay and working conditions for Faili Kurd refugees are often significantly worse than for Iranians doing the same work. However, in Ilam and Kermanshah provinces, where locals speak the same dialect as Faili Kurds, there is considerable sympathy for Faili Kurds so working conditions might be better there than in other parts of Iran. Sympathy from low-level local officials such as policemen might also lead to a lower level of official attention in those provinces.
…
4.4 DFAT has spoken to a range of credible contacts in relation to the societal treatment of Faili Kurds. Contacts have not reported instances of Faili Kurds being targeted for extortion or being subject to harassment, detention or physical assault. However, contacts were not prepared to rule out the possibility of this occurring to individual Faili Kurds, due to their vulnerability as refugees and their Kurdish identity.
4.5 On this basis, DFAT assesses that this type of societal discrimination against Faili Kurds is not widespread, but cannot be ruled out in individual cases.
…
5.8 DFAT cannot make a definitive assessment in regards to treatment of Faili Kurds by the security services. It is possible that individual members of the Basij discriminate against ethnic and religious minorities, including Faili Kurds. The Basij, particularly in rural areas, often receive low levels of training and might not have clearly defined roles or objectives, leading to an element of unpredictably in behaviour. The Basij and Iranian Revolutionary Guard Corp have some members who are ethnic minorities, including ethnic Kurds.
5.9 In Tehran, police occasionally conduct inspections of cars at night. The Basij also undertake patrols, also usually late at night. Either may include checks of identity cards. Inspections are infrequent and are not a normal part of everyday life. However, the frequency of inspections fluctuates and the presence of security forces on the streets varies. Inspections and identification checks would normally be less frequent in small villages.
5.10 The Iranian Government has been engaged in a low-level insurgency with Kurdish militias in border areas between Iran and Iraq. As a consequence, Kurds and those in Kurdish areas might face harassment or additional attention from police and military forces. However, in general Kurds in Ilam and Kermanshah are Shia, so would normally face less challenges in interacting with the Government than other (Sunni) Kurds. Incidents between Government forces and Kurdish militia in Kermanshah have reported been infrequent in recent years.[3]
[3] DFAT Thematic Report - Faili Kurds in Iraq and Iran, 3 December 2014.
The applicant agreed with this information, but noted that his disability made things worse for him.
I find on the country information above, that as a Faili Kurd with Iranian citizenship, the applicant has access to employment opportunities, education and health care on the same basis as any other citizen. I do not accept, and the applicant conceded, that he would be discriminated against or unable to access any of these services because of his ethnicity. He agreed that he would not face harm or discrimination for the authorities for reasons of his ethnicity and I find as such. I find that the applicant is of the Faili Kurd ethnicity/race, but for the reasons above I do not accept that he will suffer serious or significant harm for this reason in the reasonably foreseeable future. I have considered his claims of cumulative harm below.
Treatment as a person with a disability in Iran
As above, I have not accepted that the applicant has been discriminated for reasons of his disability in the past in Iran. I understand that employment has been harder to find for him because of his disability, but as I discussed with him I do not believe that this is what led to him being unable to find the employment he wanted – rather it was a combination of him not passing the employment exams and the general lack of employment opportunities in Iran due to the economic situation.
In fact the applicant’s account did not indicate to me that he had suffered discrimination or mistreatment on the basis of his disability in Iran. I also raised with him at hearing a range of country information which tended, I suggested, to indicate that the authorities were taking steps to improve the situation for those with a disability, and I suggested to him that things may in fact be better now in Iran for those with a disability than when he left. I noted that there were a range of NGOs which had had some success in pressuring the government and private industry to employ disabled people, they provided skills training for disabled people as well as micro-finance opportunities for people to set up business, and there were also online job boards for disabled people.[4] The applicant conceded that this all may be available, but that the quota for disabled people was only 3% and someone like him was not allowed to get a lot of points. I noted again to him that the country information indicated that the economic situation in Ilam, as a regional area, was quite poor, and that I might consider that he had been unable to find a job not because of his disability, or his ethnicity, but because it is difficult for everyone there to find a job. He said that was true but his disability made it worse.
[4] ICRC, “Iran: Giving disabled people a chance to lead a normal life”, 2 November 2015, Financial Tribune, “Employment Website for Iran's Disabled”, 1 March 2017, Tavaana, “Changing Perceptions of Disability and Disability Rights in Iran” Sadeghzadeh, C., “Disabled push for a better life in Iran” 29 August 2015, BBC Persian, type="1">
I have carefully considered the applicant’s claims, as well as the country information about the situation for disabled people in Iran. I note that the applicant did not indicate that he had been harassed, discriminated against or harmed for reasons of his disability other than the claimed discrimination in terms of employment.
I find that the applicant has not suffered discrimination in the past for reasons of his disability. He has completed university and was able to be employed in the family businesses. I accept that he was unsuccessful in seeking government employment but I find that this was because he did not succeed in the tests he undertook. I do not accept he was denied the opportunity to take the tests. I agree that a 3% quota for people with a disability is low but I do not accept on the evidence before me that it is low because of discrimination or any intent to harm those with a disability. I find that the main and significant reason for the applicant being unable to find employment was not his disability or his ethnicity, but the poor employment situation in Iran due to the poor economic situation. I do not accept on the evidence before me that his situation as a person with a disability as described above, meant that the applicant had fewer opportunities than other young people in Ilam. Given that he has been able to subsist in the past, and that he has been supported in the past by his family, I find he would be supported by them in the future. I have considered that the family businesses – the [first] business and then [the second one], are not operating, that his father has died but that the family continue to receive his pension, and that his brother is not working and his sister looking for work, but I also note that the applicant has been able to find work in Iran and also in Australia and could use this experience to seek work in Iran. I find that he would be able to subsist, and I find that there is no real chance that his capacity to subsist would be threatened by anyone.
I accept that the applicant is a member of a particular social group of ‘disabled persons’ in Iran, but I do not accept, for these reasons, that he has suffered serious or significant harm for reasons of his membership of this group, nor do I accept, given the above, that he would suffer such harm in the reasonably foreseeable future.
I have also considered the applicant has had periods of depression in the past, and I have accepted that he may continue to suffer symptoms of depression. However, he has been able to seek treatment for this in the past in Iran and he did not claim, and I do not accept, that this led to him being unable to work in the past. Whilst I accept that he may suffer depression if he returns to Iran in the reasonably foreseeable future, I do not accept that this would lead to him suffering serious or significant harm because I find he will be able to seek treatment as he has done in the past and it will not be denied to him for any reason.
Person of interest / actual or imputed political opinion
As above, I have rejected that the applicant was imputed or actually held an anti-regime political opinion. Whilst I accept that he was detained for one day in 2010 for infringing the moral rules and was beaten and sworn at by a police man in 2011, I do not accept as above that this leads to him being imputed with such an opinion. I do not accept that there is more than a remote chance that an event such as this will happen to the applicant again in the reasonably foreseeable future – the events occurred outside his home area and when he was younger. I have rejected that he protested at the [government] office or was questioned by the authorities or issued with any warning letters. I find that the applicant was not ever a person of interest to the authorities. I do not accept on the evidence before me that he would return and be of any interest to the authorities. I do not accept that there is a real chance that the applicant will be seriously or significantly harmed in the reasonably foreseeable future for reasons of his actual or imputed political opinion.
Failed asylum seeker
The applicant departed Iran lawfully on his own passport. I therefore find that he would not be subjected to any sanctions for the manner of his departure.
Country information in relation to the return of failed asylum seekers is in the following terms:
Conditions for Returnees
5.33 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 (e.g. regular departure through airports or with passports).
5.34 From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Imam Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.
5.35 In some communities, particularly Kurdish and Arab, cultural factors involving ‘face’ will ensure that a voluntary returnee is unlikely to draw attention to themselves for having ‘failed’ to leave Iran upon their return to the country but generally DFAT is not aware of any legislative or social barriers to voluntary or involuntary returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran. DFAT is also not aware of any specific barriers for voluntary returnees to travel to their home region, including for unaccompanied women. Some women from minorities or rural areas may feel culturally unable to travel unaccompanied within Iran.[5]
[5] DFAT Country Information Report – Iran, 21 April 2016.
I explored this information with the applicant at hearing. He confirmed that he departed on his own passport, that he had no difficulties passing through the airport or getting his passport. I noted that many Iranians departed and spent long periods overseas, including in Western countries such as Australia, and the country information above did not indicate that they were harmed. He said that those who left to study left legally and he was not sure if it was the same for those who left to seek asylum. He said he was not sure what they were going to do with him given they talked to his brother and made the threats to his father.
As above I have not accepted that there were any threats made to his father about the applicant. Whilst I accept that his brother was questioned once at the airport and once in Ilam, including about the applicant, I find that this was only because the applicant had been outside Iran for a considerable period. Given the length of time in which nothing has happened to his brother or family, I do not accept that the authorities held or hold any ongoing interest in the applicant.
I accept that the applicant would return as part of the particular social group of ‘failed asylum seekers’ and/or ‘failed asylum seekers who have spent time in a Western Country’. I find that, as a failed asylum seeker who departed on his own passport he would face minimal questioning, as did his brother, possibly amounting to being questioned at the airport and once at Ilam, from the authorities, and would then be able to return to his home area of Ilam. I do not accept that in this process he would be harmed in any way. I have taken into account his mental health but on the evidence before me I do not accept that he, as a person of no prior interest to the authorities, would face questioning or other treatment such as to amount to harm, even taking into account his mental health. I find that he would not face any harm for living in Australia, a Western Country for a number of years.
Cumulative claims
I have considered the applicant’s claims cumulatively. As an Iranian citizen of Faili Kurdish ethnicity, with a disability as described above, who has been detained overnight by the authorities seven years ago and was once assaulted and sworn at by a police officer, who would return as a failed asylum seeker and a failed asylum seeker who has spent time in a Western country, who may be questioned by the authorities but this would not lead to harm as found above, including for a person such as the applicant with symptoms of depression, and who may be suffering symptoms of depression but could access treatment in Iran as he has done in the past, I do not accept that he would face serious or significant harm taking into account his claims cumulatively. I find that, if the applicant returns to Ilam in the reasonably foreseeable future, he will be supported by his family who are living on his father’s pension, that as a person who has worked in a variety of jobs in Iran and Australia, and has a degree, he would face prospects of being employed. I find that, on the country information, he would have access to employment, health care and social security on the same basis as other citizens. I find that, in Ilam, he would face only a remote chance of official or societal discrimination on the basis of his ethnicity and disability.
Whilst I accept that the applicant does not wish to return to Iran, and may have a subjective fear of being able to live and find employment there, I find that this fear is not well-founded.
Having considered the applicant’s claims individually and cumulatively, I find that there is no real chance that he will be seriously harmed by the authorities or anyone else for reasons of his ethnicity, his actual or imputed political opinion, membership of the particular social groups of ‘disabled persons in Iran’, ‘failed asylum seekers’ and ‘failed asylum seekers who have spent time in a Western Country’, membership of his family or for any other reason on return to Iran, now or in the reasonably foreseeable future.
Complementary protection
I have considered whether there are substantial grounds for believing that the applicant will face a real risk of significant harm on being returned to his receiving country, Iran. I have found above that there is no real chance that he will be seriously harmed on return in the reasonably foreseeable future for any of the reasons claimed or any other reason apparent. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33. On the same basis I find that there is no real risk of significant harm.
At hearing I asked the applicant if he feared harm for any other reason and he reiterated that he was afraid that his disability would mean he would face harm. I have found above that here is no real chance of this occurring. I have found above that his status as a person with a disability will not threaten his capacity to subsist. I do not accept that his disability, even when considered with his other characteristics including his ethnicity and his periods of depression, will lead to a real risk of him suffering significant harm, he has been able to subsist and has not otherwise been harmed for reasons of his disability in the past and I do not accept there is a real risk he will be in the future. He spoke also of his claimed profile with the authorities, which I have not accepted. He did not indicate any further risk of harm when questioned other than those above. I have accepted that he would return as a failed asylum seeker failed asylum seeker and a failed asylum seeker who has spent time in a Western country, who may be questioned by the authorities but this would not lead to harm as found above, including for a person such as the applicant with symptoms of depression. I accept he may be suffering symptoms of depression but could access treatment in Iran as he has done in the past and I do not accept that he would suffer significant harm.
I have considered the claims of harm, individually and cumulatively, of the applicant, and my assessment of the situation for the applicant if he returns to his home area of Ilam in Iran.
I accept that the applicant would find it distressing and difficult to return to Iran . However, as above I have found that [the applicant] would be supported by his family and would face prosects of being employed, as he was before.
Therefore, having regard to these findings and the findings above, both individually and cumulatively I find, that the applicant does not face a real risk of significant harm in Iran from the authorities or anyone else for any of the reasons identified above. I find therefore that there are not substantial grounds for believing that there is a real risk that either applicant will suffer significant harm upon being removed from Australia to Iran.
Conclusions
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sean Baker
Member

ATTACHMENT A - 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.
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.
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’).
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.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2018] AATA 287

12 January 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction