1510996 (Refugee)

1510996 (Refugee) [2017] AATA 2210 (13 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510996
COUNTRY OF REFERENCE:                  Iran
MEMBER:Denis Dragovic
DATE:13 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 13 October 2017 at 9:32am

CATCHWORD
Refugee – Protection visa – Iran – Social group – Member of lay religious group – Vulnerable person – Memory Issues – Fear of harassment and arrest – Second applicant’s age of arrival
LEGISLATION
Migration Act 1958, ss 5, 36, 48A, 65, 417, 499
Migration Regulations 1994, Schedule 2 r 1.12
CASES
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants claim to be citizens of Iran. The Tribunal has viewed copies of their Iranian passports. The Tribunal accepts that the applicants are citizens of Iran and that Iran is their country of reference for Refugee Convention reasons and the receiving country for Complementary Protection purposes. I also find that the applicants cannot avail themselves of a right to enter and reside in a third country.
The applicants appeared before the Tribunal on 12 April, 29 May and 21 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [the second] named applicants’ wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
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 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).
In their earlier applications the primary applicant’s wife and son were included as dependents without their own claims. In the current application the primary applicant has retained his original claims, the applicant’s wife continues to rely upon her husband’s claims as a member of the family but the son has claims of his own. In light of SZGIZ, the Tribunal has considered the applicant and his wife’s claims only in relation to s.36(2)(aa) while expanded the review for the son to include both a Convention and Complementary Protection review.
The second hearing was scheduled during Ramadan. A request to postpone the hearing until after Ramadan was received but not accepted for the reason that I found it not unreasonable, even taking into consideration the applicants’ age and considering Islamic obligations, to continue with the hearing starting at 9am.
Complementary protection criterion
A person may 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.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and child.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of the applicant’s claims: The applicants departed Iran [in] July 2005 a few weeks after the election of Mahmoud Ahmadinejad. The husband and wife travelled legally to Australia with their [age] year old son in 2005 for the purpose of obtaining IVF treatment. The primary applicant claimed that following the election a lay religious group that he was [an official] of was seeing its senior membership pursued by the government including board members being arrested and executed. Upon hearing this news the applicant chose not to return to Iran and instead he and his family have remained in Australia. The applicant fears that he and his family will be targeted by the opposing lay religious group and their proxies in the state security apparatus. As such they applied for a protection visa [in] September 2006. The application was refused and the decision was appealed to the Tribunal which affirmed the decision on 12 April 2007. The applicants remained on a succession of bridging visas until the legal framework changed.
From 24 March 2012 a new criteria for the grant of protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm. The applicants submitted the application for the protection visa currently under review on 9 December 2013 following these changes.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Memory and Mental Health
The primary applicant is [age] years old. He has spent the past [number of] years in Australia. Relevant information upon which the application is based reaches back to the early nineteen-eighties. The applicant has participated in numerous interviews and made repeated submissions over the period of his stay in Australia.
In a consolidated review of past mental health examinations , [a] psychiatrist at the [Organisation 1], assessed the primary applicant in February 2015 with a particular focus on his mental health and possible memory loss. The report states that, ‘It does not appear that [the applicant] is suffering from Senile Dementia of the Alzheimer Type. I believe that his ongoing predicament contributes to his [mental] state and daily functioning, manifest primarily as[various symptoms]. There are no signs suggestive of a dementing process. In my opinion it is not inconceivable that [the applicant’s] reported inconsistencies and lack of detail may be contributed to by his mental state.’[1]
[1] [File number] folio 152
Due to his age and ‘ [mental] state’ I accept that the applicant is a vulnerable person as defined in Guidelines on Vulnerable Persons.
I also note the Guidelines on the Assessment of Credibility in which it states, ‘A person may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events. A person may remember events that affected him or her most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that person is not telling the truth.’[2]
[2] Migration and Refugee Division, Guidance on the Assessment of Credibility, at [30]
At the hearing I noted that it appeared from the documentation that the applicant’s memory had deteriorated. For this reason at the onset of the hearing I asked to what degree he can remember the details of his claims. He responded that he feels like he has dementia as the details are forgotten.
At the second hearing the applicant was unable to respond to many questions including questions that were asked and answered by him in the first hearing. He claimed that he had Alzheimer’s. I requested a doctor to certify the claim. He did not provide any submissions. I note that the most recent medical assessment states that he is not suffering from ‘Senile Dementia of the Alzheimer Type.’
Considering the considerable amount of information already available to the Tribunal from earlier interactions when the applicant was more willing to engage or his memory was serving him better I proposed to refer to his earlier submissions for any missing details. Where there was a contradiction I’d present it to him for comment. The applicant offered no objections.
Evidence
Submissions received
A statutory declaration dated [in] October 2006[3] was submitted by the applicant. In this submission the applicant states:
·The applicant was a [member] in about [year] of [a religious group].
·The aim of [Religious group 1] was to follow Fatemeh. It grew to have a membership of about [a number of] people. Before the revolution they would hold regularly weekly meetings. The group was not clandestine.
·[Some] months after the 1979 revolution it broke into two groups. One half followed the revolution the other half of members chose to start a new group [of] which he was[a senior official], ‘the most important position within the [Religious Group 2]’. This group ‘opposed the revolutionary government and supreme leadership. We believe that the only legitimate leadership is the Lord of the Age (the Promised One) when he returns.’
·The group would explain to student and business supporters that having a supreme leader was sacrilegious.
·Between 1978 and 2004 the two groups operated without significant problems or incidents
·Since the election of the new [official] [Religious group 2] members had to operate on a clandestine level because [Religious group 1] began to threaten members of the applicant’s group. They tried to coerce them to join their group. They threatened them that if they didn’t join them they would be reported to the security agencies. These threats made them fearful and as a result they conducted their meetings secretly.
·Leading up to coming to Australia the applicant claims that he did not believe that his life was in danger.
·In July he was informed that the leadership of the [Religious group 2] was being targeted. He was informed that [colleagues] had been executed, one imprisoned and that the remaining [leaders] of the group had disappeared or were in hiding. He has been warned by his friends that he will be ‘persecuted, imprisoned, or executed’ if he returned. After hearing these things he told his friends not to contact him anymore.
[3] [File number] folio 60
A second statutory declaration dated [in] January 2007[4] was submitted by the applicant which included that:
[4] RRT 0610140910 folio 48
·The applicant corrected the spelling of his group’s name to[name].
·In both groups there was no formal membership but rather people who knew of the meetings would attend. They would attend meetings in mosques or large houses.
·The applicant reiterated his theological objection to the basis of the post-revolution governance structure known as Valayat-e-Faqih which creates the role of a Supreme Religious Leader.
·The people who continued to operate [Religious group 1] and support the revolution he believed became informants for the government. He claimed that they stopped him from going to Mecca to pay homage by delaying the processing of his travel.
·[Religious group 1] has hosted people in high positions to speak at their meetings, they would advertise in newspapers their meetings as well as receiving direct benefits such as land and interest free loans.
·[Religious group 2] was not registered with the government.
·[Religious group 2] meetings continued to received [attendees] despite emerging from a split from [Religious group 1]. Meetings would be announced by a telephone tree. They invited members of the clergy to speak at their meetings. The clergy would speak against the regime surreptitiously.
·One of the clergy who spoke at his group was later identified and executed by the government.
·Between Ahmadinejad being elected and his departure for Australia he held two meetings but were more careful about who they invited.
·After Ahmadinejad’s election he heard that the members of [Religious group 1] were threatening his group, though he was never directly threatened.
·In March 2006 he received a call from a friend involved in [Religious group 2]. He corrected the previous statutory declaration claim of June 2005. He was contacted a few more times over a period of fifty days.
·He claims that his friend told him that there was a warrant for his arrest. He claims that he referenced the warrant in the previous statutory declaration.
A third statutory declaration dated [in] February 2007[5] was submitted by the applicant which included that:
·Apparent contradictions identified by the Tribunal regarding the names of the board members were corrected.
·Clarified his original claim that he was a [member] in [year]. Instead he stated that he became a Member of the Board of Directors after a couple of years of attending gatherings. He stated that he was [an official] of [Religious group 1] for the seven or eight years leading up to the revolution.
·Reaffirmed that he received a call in March 2006 from his friend in Iran.
·He clarified the type of dissent that they were facilitating in that when clerics would speak they would outline what is expected of the velayat-e-faqih and expect the audience to understand that what was happening within Iran was different.
·He stated that [Religious group 1] would go to the people and say that the applicant’s group were against the regime. He said that it was well known within the bazaar that his group was against the regime.
·His problem is that [Religious group 1] has initiated action against [Religious group 2].
·He was a person of power and influence in Mashad and that is why [Religious group 1] wanted him to support them.
·That all [members] of [Religious group 1] were members of the Basij
[5] RRT 0610140910 folio 95
A fourth statutory declaration dated [in] April 2015[6] was submitted by the applicant which included that:
·Affirms that the three earlier statutory declarations are correct and relies upon them for his second protection application.
·He finds it difficult to remember the details of what has happened in the past
·Since the election of Ahmadinejad the Basij grew in power and it became dangerous for anyone to oppose the regime
·He received a call from a friend whose name he can no longer remember and was informed that others had been executed and imprisoned. He believes that his group no longer exists.
·He claimed that he received two faxes from his [relative] via [Organisation 1] [in] January 2011.
·He added the claim that he fears he’ll be considered a spy or a sympathizer of the West for having then spent ten years in Australia
·He has attempted to get a passport from the Iranian embassy but has been unable to due to a fear of explaining why he was living in Australia for so long
·He reasserted his opinion on why the Iranian regime should not be in power, specifically that the representative of the Prophet should be innocent but they are not
[6] [File number] folio 108
A statutory declaration dated [in] April 2015[7] was submitted by the second named applicant. In this submission the applicant states:
[7] [File number] folio 108
·He fears returning because of the political profile of his father
·He has problems with the way the Iranian government controls people through the use of religion
·That he would be perceived by the Iranian government to have Western values for having lived in Australia for so long but also because of the clothes he wears and because he lacks the cultural understanding of Iran
·His father lodged an application for a passport at the Iranian Embassy in Australia but the process took over a year and the application forms included questions such as why they were in Australia. The applicant’s father cancelled the process to acquire a passport for fear of providing further information if they were returned.
·He undertakes a number of activities that are in contradiction to the way the Iranian government understands Islam including drinking alcohol and gambling at times
·He fears the way that he practices religion would lead to arguments in Iran in particular that he sees religion as being an individual’s choice and not to be used to force people to think and act in certain ways
·He would have to perform compulsory military training. He does not believe in violence. Undertaking such training would be like torture to him.
·He is married to an Australian Muslim and they do not live their life in a way that would be considered acceptable in Iran
Hearing

The primary applicant said that he was [an official] of [Religious group 2] until his departure to Australia accompanying his wife who was receiving IVF treatment, which was a month prior to Mahmoud Ahmadinejad becoming president in 2005.
Before the 1979 revolution the group was called [Religious group 1]. After the revolution it split into two one of them being [Religious group 2] which he set up. The purpose of [Religious group 1] was to discuss and promote Islam and write commentaries on the Koran. He explained that it was different to mosques and the role of the Ulema as in Iran religious teachings are promoted through regular people alongside mosques and the government.
After the revolution differences in the ideology emerged among members. The applicant and other colleagues did not actively support the revolution. As such they separated into two groups. Between the revolution and when Mahmoud Ahmadinejad came to power in 2005 there were threats and arguments and the applicant’s group felt that they were isolated and disrespected.
The applicant stated that the situation changed when Mahmoud Ahmadinejad came to power as the other group was a strong supporter of the new President. But the situation has evolved beyond their support for the regime to one in which the applicant has an outstanding warrant for his arrest. Regardless of the change of President in Iran, the applicant claims that the laws are the same and he has a case to answer. He said that he knows this based upon what a friend told him.
In March 2006 he received a call from his friend who told him that [colleagues] had been arrested. They were given the death sentence and were executed. He also said to the applicant that the authorities were looking for him. Since that call the applicant hasn’t contacted any of his friends from[Religious group 2] because he said that his friend had asked him not to.
Subsequently the applicant said that he didn’t know what happened to the [people] who were arrested. I put to him that earlier he said that they were executed to which he responded that his friend told him that they were executed. He said that his friend told him that they were arrested and executed. I put to him that in earlier evidence he submitted that[they were executed and imprisoned]. He responded that maybe that was the case. He reiterated that he couldn’t remember.
I asked whether they had done any research as to whether there was any reporting of the claimed incidents, to which the second named applicant,[an age] year old man, said that he hadn’t as his father had never given him the names and his father claimed that he had disposed of all of his documents. I provided the applicants with the previous Refugee Review Tribunal decision record that included the names of those the applicant claimed had been executed and imprisoned. I emphasized that their current case rests upon claims of two phone calls that the applicant said he received. They claimed that it would be difficult to find evidence as its twelve years ago. I provided the applicants six weeks to undertake the necessary research and suggested that they could contact an Iranian lawyer to get the death certificates and talk to family friends and the Iranian community to find other ways to get supporting information. I also suggested that they could write to an NGO in Iran to seek support or talk to someone in a mosque to see if they have a contact in Mashad and can go to the Births, Deaths and Marriages Registry. At the resumed hearing the applicants did not provide any additional evidence. When put to the applicant that his son was unable to find any evidence he acknowledged the fact but did not comment further.
The applicant’s wife said that the applicant didn’t share information about the event in Iran with the family when he had first learned of it, but he was visibly distressed and losing weight. She said that she would wake up in the middle of the night and would see him gazing blankly. She found out when her [relative] called and told her while in the midst of making preparations to return to Iran, which was a few months after her husband received the call from his friend. She then approached her husband and they then applied for protection.
The applicant claimed that his [wife’s relative] went to their house and she saw that it was ransacked and believed that government officials had done it. The applicant’s son claimed that this had occurred in 2010, the applicant said 2005 while his wife said it was 2007. The applicant said at the most it was two years after he left Iran. At the second hearing I asked again when this occurred but the applicant said that he couldn’t remember at all. I put to the applicant that he had provided an answer at the previous hearing and as such he should be able to provide a similar answer. He said that he was tired and that he couldn’t remember. He claimed that he had Alzheimer’s. I asked him if he had any medical evidence that he has Alzheimer’s. He responded that he hadn’t followed up on that direction, but he had seen a doctor for other health issues. I put to him that if he is claiming that he can’t remember because he has Alzheimer’s then I’ll need a doctor to certify that. He said that he would follow through and see a doctor. No subsequent submission was made to support this claim.
The applicant claims to have submitted a summons to the Department. He said that his [relative] went to collect the rent at their parent’s house and one of the neighbours came and said there were letters for her [relative]. One of the letters was a summons. He couldn’t remember how his [relative] sent the summons to him in Australia. I asked when he received the summons but he was unsure. He claims that he submitted it to the Department. There are no summons in the Departmental files. There is a mention of it in the current application’s delegate’s decision.
At the third hearing the applicants recalled that [Organisation 1] was representing them at the time and that the primary applicant’s [relative] faxed the summons to [Organisation 1]. [Organisation 1] provided the Tribunal with copies of a summons and a warrant as well as a translation of both documents. They are dated [in] October 2010 and [in] October 2010.
[Religious group 1] would, as a charitable body, raise funds by going door to door. With the money raised they would buy food for people in need. The applicant claimed that [the group] would sometimes give [an animal] as a donation. He couldn’t remember how much money they would raise despite being responsible for maintaining the ledger. He stated that the group helped about 100 people a year.
Findings of Fact
The primary applicant has claimed that he was a member of a group originally named [name of Religious group 1] and subsequently [name of Religious group 2]. Despite being requested by the Tribunal to provide supporting documentation on the existence of such groups none were provided. An internet search did not result in any hits either. Based upon the description provided by the applicant it was a group localised in Mashad. It had according to the applicant [number of] people that could loosely be described as ‘members’ prior to its split and apparently this number after the split. Based upon the consistency of the claim and the plausibility of such a group existing I accept that the named groups existed.
The applicant claimed in his [October] 2006 statutory declaration that the two groups operated without significant problems until the election of President Ahmadinejad. At the hearing the applicant stated that they were bothered by the other group but they tried to ignore them. He claimed that he was stopped from going to Mecca to pay homage through their influence in delaying the processing of his travel documents. The applicant stated that the opposing group was closely aligned with Ahmadinejad who was strongly supported by the Basij and so this group had their backing. I accept that the group was aligned with Ahmadinejad and that it had the backing of the local Basij and that his application to travel to Mecca was delayed by them.
The applicant’s claimed role has varied, with differences corrected through various iterations of his submissions. What appears consistent is that the applicant was a part of the leadership group of [Religious group 1] and subsequently [Religious group 2]. Whether he was [a high ranking official or not] I find not to be relevant to the case. As such I accept that the applicant played a leadership role in both groups from the early 1970s through until he left Iran in 2005.
The applicant had provided conflicting information on when he had received the first call from his colleague warning him of the threat he faces. At the hearing the applicant did not remember the name of the person who had called him. In his first statutory declaration it was July 2005 while in the second and third he confirmed that it was March 2006. The content of the call was that three of his colleagues had been caught by the authorities. Discrepancies emerge over what happened to them. At the hearing he said that all of the [people] that had been caught were executed, in earlier statements he said that[some were executed and imprisoned]. When this discrepancy was presented he responded that he couldn’t remember the details and that it could be as I noted. Having acknowledged that the applicant is suffering memory issues related to his mental health I do not place any weight on the inconsistency of the oral evidence.
Being unrepresented, at the hearing I suggested to the applicant’s son to undertake some research, to contact his family friends in Iran or to hire a lawyer in Iran and find proof of the death of these men. I suggested that a death certificate would be one possibility. Despite six weeks being provided to the applicants to gather documentary evidence of the claimed death or imprisonment of the board members none was provided. When put to the applicant in the second hearing he acknowledged this but did not comment further.
Despite the accessing of births and deaths information being reasonably available to the applicants yet no independent confirmation of the deaths of the individuals being provided and because of the inconsistency of what happened to them in submissions at a time when the applicant’s mental health was not in question I find that no one of the leadership of [Religious group 2] was harmed by the regime.
The applicant claims that there is a pending warrant or a summons. His first claim of the existence of a warrant for his arrest emerged in the second statutory declaration dated [in] January 2007 at [24] stating that he learned from his friend, [that] there was a warrant for his arrest. He claimed in that statement that he had mentioned it in the previous one of [October] 2006. This is not the case. The closest any mention in the first statutory declaration to a warrant is when he states, ‘I fear that as a member of the[Religious group 2] leadership I may be arrested and executed or tortured or made to disappear by the Iranian authorities’ [19] which I do not equate to referring to a warrant.
It is questionable that not until January 2007 does the applicant make it known that his friend told him that there was a warrant for his arrest. Was I to accept this then it would follow that the authorities issued a warrant prior to March 2006 for his arrest, he knew about it but forgot to mention it to the Department and then subsequently the government revived the matter in 2010 and rather than pursue an existing warrant instead they issued a summons and then another warrant. Regarding the Iranian government’s actions, it seems farfetched that this would be the case but for the political circumstances of late 2009 and 2010 in Iran, a time when the Green Movement was threatening the authority of President Ahmadinejad and for this reason I give the applicants the benefit of the doubt. I find that it is possible that records of those who have voiced opposition to the regime, real or perceived, were being followed up. Country information notes:
When dealing with political cases or during times of social unrest, the judiciary has shown a high tolerance for security authorities bypassing the legal system.[8]
In this circumstance I find that the applicant did not have an original pending arrest warrant for the reason that it was not mentioned in his original claims, despite it being a central concern. It only appears in a subsequent statutory declaration by way of a source whose other information I have not accepted as fact, namely that his colleagues had been executed. Furthermore, that in 2010 another summons was issued followed by a warrant based upon the same issues suggests that there hadn’t been any prior legal process undertaken. As such I accept that there is a 2010 warrant for his arrest. The warrant states that the result of non-appearance is arrest and an order to be issued in absentia. I do not accept that there was a prior arrest warrant issued in 2006.
[8] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report : Iran’ 21 April 2016 at [5.18]
The applicant claimed that his [wife’s relative] went to their house and she saw that it was ransacked and believed that government officials had done it. I accept that this is what they were told but do not accept the conclusion that it was done by government officials as it is mere speculation considering that there is so much confusion between the three applicants on when it happened and the breadth of possibilities of who did it.
The applicant claimed that the leaders of [Religious group 1] were, prior to his departure, threatening his members with being reported to the security services unless they joined their group. Country information suggests that security services can act with impunity and are influenced by the executive branch.
The security forces were not considered fully effective in combating crime, and corruption and impunity were problems. Regular and paramilitary security forces such as the Basij committed numerous serious human rights abuses, but there were no transparent mechanisms to investigate security force abuses and no reports of government actions to reform the abusers.[9]
The constitution provides that the judiciary be “an independent power;” but in practice the court system was corrupt and subject to political influence…On November 4, the UNHRC expressed concern about the lack of judicial independence, stating that the judiciary was compromised by undue pressure from the executive branch, including the Office for Supervision and Evaluation of Judges as well as senior clerics and high-ranking government officials.[10]
Based upon information that suggests impunity and influence by the executive I accept that threats were made.
[9] US Department of State 2013, International Narcotics Control Strategy Report, Vol. 1: Drug and Chemical Control, March, Section: Iran < Accessed 3 May 2013
[10] US Department of State 2012, 2011 Country Reports on Human Rights Practices – Iran, 23 May, Section 1.e < Accessed Fri, 25 May 2012
Claims
The First Named Applicant
The applicant has claimed that he will be arrested and harmed by the government because a warrant for his arrest is active which is now a part of the judicial system and is not dependent upon President Ahmadinejad being in power. His fear is that he will be arrested, executed, tortured or disappeared.
As for the possibility of future harassment and harm arising anew from [Religious group 1], the questions that I will consider begin with whether the group, [continues] to exist? If it does would the level of influence in Mashad with the local Basij and other security services be greater or lesser under the new leadership of President Rouhani? Lastly, if they maintain their influence, would the leadership of [Religious group 1] pursue this animosity despite the opposing group ceasing to exist nearly 12 years ago?
[Religious group 1] has existed since the[year]. It survived a revolution and numerous changes of government for a period of forty years. As such I accept that it continues to exist.
The applicant noted that between 1978 and 2004 the two groups operated without significant problems or incidents. It was only with the rise to power of President Ahmadinejad that they faced some threats. Based upon country information I accept that threats are possible but I do not accept that in the specific circumstances any such threats were followed up on such that his colleagues were imprisoned or executed. Despite ample opportunity being given for the claims to have been verified by way of death certificates or any other means none were provided. I find it far-fetched that the claimed activities of the applicant and his group would go unnoticed during the particularly sensitive post-revolution period and throughout the Iran-Iraq war and yet only when Ahmadinejad is elected that he and his colleagues face a risk of persecution including some being executed. For this reason I find that the degree of influence [Religious group 1] had with the local Basij was limited to the particular circumstances of the mid to late 2000s under the presidency of Ahmadinejad. I find that in the reasonably foreseeable future the group will not have influence such that they can organise harm to the degree of significant harm to an individual.
I now turn my mind to consider whether the applicant faces not only threats but threats which would be enacted in the future such that they meet the threshold of significant harm namely being arbitrarily deprived of his life; the death penalty will be carried out; he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. I accept that [the religious group] exists but I found that their influence was limited and as such would not have the influence to bring to bear significant harm. For this reason I find that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of returning to Iran.
I accepted that the outstanding warrant had its genesis in the dispute with [the] group and that it was issued following the upheaval of the 2009 election of President Ahmadinejad and specific circumstances of the country at the time which was of a social unrest and political upheaval stemming from the rise of the Green Movement. But past harm is not necessarily indicative of future harm.
I note that country information suggests a softening of the authority’s stance towards those who were perceived to oppose Ahmadinejad in the more recent and volatile 2009 elections: ‘Most lower profile activists arrested in the 2009 and 2010 protests and subsequently released are unlikely to face serious on-going harassment, and should normally be able to go about their daily lives unmolested.’[11] I have accepted as fact that the 2010 arrest warrant was in relation to an effort to pursue actual or perceived objectors at a politically volatile time by the state security apparatus of the time. As such I find that the 2010 arrest warrant was politically motivated arising from a general sweep of opposition groups, real or perceived, but not individually targeted.
[11] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report : Iran’ 21 April 2016 at [3.67]
Country information suggests that ‘In case the accused is not present at any time during the proceedings or the trial, then the judgment will be considered to have been issued in absentium (Article 217). The accused is then entitled to ask for a re-trial within 10 days from being actually served with the judgment.’[12] I find that the applicant would be served with the judgment upon return to Iran. He would have 10 days to ask for a re-trial.
[12] Immigration and Refugee Board of Canada 2009, ran: The circumstances under which court summons and forfeiture documents are issued by courts; information on bail; the circumstances under which notices of conviction are issued by the Islamic Revolutionary Court; the prevalence of forged court documents, 6 May, IRN102981.E,

During a re-trial according to Article 6 of the Iranian Criminal Code of Procedure for Public and Revolutionary Courts, which I find would be applied in this case, the investigation will be suspended if the accused is subject to dementia before the definite sentence is issued.[13] The applicant is [an age] years old and suffering from what he refers to as Alzheimer’s which while I have not accepted as a medical diagnosis appears representative of his current mental state.
[13] See Article 6 of the Iranian Criminal Code of Procedure for Public and Revolutionary Courts at Iran: Criminal Code of Procedure for Public and Revolutionary Courts (repealed) [Islamic Republic of Iran], 19 September 1999, available at: 5 October 2017]
Furthermore, as noted the political situation has changed and whereas country information suggests that, ‘when dealing with political cases or during times of social unrest, the judiciary has shown a high tolerance for security authorities bypassing the legal system’[14] were the applicant to face a re-trial in the reasonably foreseeable future there would be no political motivation for the judiciary to allow a bypassing of the legal system. As such I find that it being a local dispute, centred on differences of opinion relating to matters that did not raise the concern of authorities for over twenty-five years spanning the tumultuous and politically sensitive periods of the post-revolutionary Iran and the Iran-Iraq war that were the applicant to be tried despite his claimed dementia the judiciary, not being politically motivated, would not find him guilty and sentence him and as such he does not face a real risk of significant harm.
[14] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report : Iran’ 21 April 2016 at [5.18]
I have also considered whether the primary applicant upon return to Iran would express a political opinion which could be construed to be against the regime. I asked the applicant whether he had been involved in anti-government activity since he’s been in Australia to which he responded that he hasn’t. He confirmed that he knew that there is an Iranian community here but that he hasn’t engaged because he is now [an age]. I asked how it was that having believed the views espoused by his group he then didn’t continue to do something along the same lines while safe in Australia. He said that he couldn’t find anyone with whom to engage with in Australia and his age now doesn’t allow it along with being sick. Considering the applicant has spent 12 years in Australia without participating in any political activity nor making an effort to seek out opportunities to engage I do not accept that the applicant, was he to return to Iran, would undertake any political activity such that it would raise his profile and come to the attention of the authorities.
Although not raised by the applicants at the Departmental interview the delegate considered the risk to the applicants of returning to Iran as failed asylum seekers. The delegate found country information supported a view that they would not face a real chance of harm. At the Tribunal hearing the applicants did not raise concerns over being identified as failed asylum seekers nevertheless I raised this with the applicants by reading the following text:
IOM, Tehran, stated that Iranians who return with their passports will not face any problem at the airport when they return after a longer stay abroad. It was added that a long stay abroad in itself, is not an issue as long as a person has left the country legally. IOM added that Iranian who have left the country on their passports and are returned on a Laissez-passer will be questioned by the Immigration Police at the airport. This questioning may take few hours, but according to IOM, nobody has been arrested when travelling back on a Laissez-passer.[15]
[15] Danish Refugee Council, Landinfo and Danish Immigration Service 2013, Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February 2013, p.69
The primary applicant did not respond. The second named applicant responded that it was the first time he had heard such a view.
The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[16] Based upon the Iranian government’s position when turning my mind to considering their claims I do so upon the basis of were they to return to Iran in the reasonably foreseeable future they would do so as voluntary returnees. As such I will consider whether as a voluntary returnee they would face a real risk of significant harm were they to return.
[16] Iran would welcome back asylum seekers 'with pride', Iranian Foreign Minister says, 16 March 2016 available at [accessed on 10 October 2017]
Strong anecdotal evidence from country reports suggest that the government does not prosecute voluntary returnees including those returning using temporary travel documents[17] (an implicit indication of being abroad for an extended period of time) nor those who are known to have sought asylum abroad and participated in IOM’s Assisted Voluntary Return programme as noted above. Based upon the available country information and considering that no alternative view was put to the Tribunal I find that the applicants do not face a real risk of significant harm for reasons associated with being identified as failed asylum seekers.
[17] Department of Foreign Affairs and Trade, Australia, DFAT Country Information Report: Iran, 21 April 2016 [5.33-34]; see also Danish Refugee Council, Landinfo and Danish Immigration Services 2013, ‘Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, February, pp. 68-69.
Having found that the Iranian regime does not prosecute voluntary returnees including those that have remained abroad for an extended period of time I find it implicit then that the applicant’s claimed fear of being considered a spy or a sympathizer of the West for having spent over ten years in Australia to not have merit. Without any further evidence provided I find that the applicants would not be considered spies and hence do not face a real risk of significant harm for being identified as spies.
Specific only to the Second Named Applicant
The second named applicant fears returning to Iran for reasons related to his father’s circumstances as well as additional claims including that he disagrees with the Iranian government on how it controls people through religion, he would be perceived to have Western values because he lived in Australia for so long, he lodged an application for a passport with the Iranian embassy that took a year to process and that this is indicative of their views towards him and his family, he drinks alcohol and gambles, he would argue with people about religion were he to return, he has to undertake compulsory military service and that he is married and fears the way they live their lives would not be accepted in Iran.
I noted that the summons and arrest warrant was in his father’s name and so there are no pending charges against him. He responded that you never know what can happen in Iran and that he doesn’t know the extent of the harm he faces. I put to the applicant having reviewed the Iranian penal code that I found that there is no risk to him.[18] He did not provide a response.
[18] See Article 5 of the Iranian Criminal Code of Procedure for Public and Revolutionary Courts at Iran: Criminal Code of Procedure for Public and Revolutionary Courts (repealed) [Islamic Republic of Iran], 19 September 1999, available at: 5 October 2017]
I asked whether he has undertaken any political activity in Australia to rally against the Iranian government to which he responded that he hasn’t. He said that he is not interested in politics and religion.
Regarding his concerns of the years he has spent away in a Western society and the perception that it may create I said that country information suggests that young people may face low level harassment for being perceived to be westernised,[19] but I find that it doesn’t raise to the level of serious or significant harm. He responded that his main concern stems from his father’s situation.
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 21 April 2016 at [3.80]
Regarding his application for a passport the applicant explained that they were advised to get one by the Department’s case officer. His father, though, explained that he applied because he had lost their passports. I asked the primary applicant why they would need passports to which he responded that they thought they needed them, but not to travel back to Iran. [The second name applicant] reaffirmed that DIBP had said that they needed it. The primary applicant said that he had tried to apply a few times but that the Iranian government would find faults with the application but he doesn’t remember what those faults were.
I recognize the concern expressed by the applicants regarding the circumstances of accessing a passport through the Iranian Embassy and the view that the delays were intentional due to the primary applicant’s political profile. I do not accept, though, that this is clear from the evidence. The primary applicant noted that there were errors in his application. It appears illogical that the Iranian government may want to harm the applicant but to do so they would deny him an ability to return to Iran where they can detain him. Without further information it would be speculative to derive any factual finding from this evidence.
I asked the second named applicant whether he was addicted to alcohol and gambling. He responded that he wasn’t but that he doesn’t want to change himself to live in a country that he didn’t grow up in. I read to him from a DFAT report which states, ‘Iranians who wish to obtain alcohol can do so relatively easily.’[20] He responded that he heard a lot of people were caught and taken to court and he fears that he too would be. While information was found that there are laws against selling and consuming alcohol country information indicates that it is not applied in practice.
Mr Javdan, director for the consular office in the Iranian foreign ministry reported that the public consumption of alcohol could result in a fine or detention for 2-3 days. Even though in theory the offence can incur a whipping, this punishment is no longer applied in practice.The Organisation for defending Victims of Violence’s international department reported that the public consumption of alcohol is a crime. The consumption of alcohol in private homes is, in practice, not considered a crime any longer. The Islamic Human Rights Commission reported that the authorities today take a relaxed attitude to alcohol consumption. Only if consumption causes a public disturbance will prosecution be likely.[21]
In the case of gambling country information does not reference it specifically but based upon the below information I accept that it is included as a violation of Islam of the same level as those listed in the below country information:
Iranian religious tradition differentiates between offences committed in the public domain and that which takes place within the confines of privacy. Offences that are in violation of Islam and that are committed in the public domain must be punished, while what takes place in the private sphere, and is thereby concealed, is tolerated to a greater extent. This can include, for example, drinking of alcohol, prohibited sexual relations, use of illegal films, books, music and religious practice. Irrespective of their ethnic and religious background, very many Iranians in practice live two lives, one in the public domain and another in private. As long as the private sphere remains private and Islamic rules and values are not visibly challenged or violated, the Iranian authorities will not normally intervene in citizens‘ private sphere.‖ [33a] (p10-11)[22]
Based upon country information indicating that the laws against the consumption of alcohol and gambling are not being enforced in circumstances akin to which the applicant would find himself I find that the applicant’s interest in alcohol and gambling were he to continue to pursue them as he has in the past would not lead to him facing a real chance of serious harm or a real risk of significant harm.
[20] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 21 April 2016 at [3.85]
[21] On Certain Crimes and Punishments in Iran: Report from the fact-finding mission to Tehran and Ankara, 2006, Danish Immigration Service, April 2006, CISNET: 14808 – accessed 28 February 2012
[22] Iran: Country of Origin Information (COI)Report, 2011, UK Border Agency, 28 June 2011, UK Border Agency, - accessed 28 February 2012
Regarding the applicant’s fear of arguments about religion and government leading to harm I read to the applicant the following:
Within limits well known to Iranians, daily life is vibrant and sophisticated. The government of the day may be criticised robustly, both in public (for example, during conversations on the street and in workplaces) and online (for example, on social media). Media organisations represent different political views and do so forcefully, provided they do not cross understood ‘red lines’, which include respect for the Supreme Leader, the constitutional and territorial foundations of the Islamic Republic and the place of Shia Islam in Iran. The government has been able to achieve some minor widening of domestic political and social space including through the continued spread of the Internet and social media, the introduction of 3G networks, some greater tolerance on culture, public behaviour and the spread of satellite dishes (see relevant sections below). Iran has an active civil society, with more than 17,000 groups working on human rights issues, as well as more than 230 political parties, 400 trade unions and specialized associations and 60 religiously affiliated societies.[23]
He responded that it’s for Iranian people already living there and all he knows is that they, the authorities, are very harsh when they treat people. He emphasized that he doesn’t believe in the Supreme Leader and sees it as a political fraud. Based upon the applicant’s lack of political activities while in Australia and country information suggesting that a robust social space is available to different opinions I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.
[23] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 21 April 2016 at [3.60]
With regards to military service I accept that Iran requires people between 18 and 35 to serve in the military. I noted, though, that there is an exemption in the law. As the only son, the law states that ‘a man who is the only male in the family and whose father is over 65 years old can receive an exemption from service.’[24] I put to them that under these circumstances the second named applicant would not need to undertake military service. The applicant’s father suggested that they could decide that under extraordinary circumstances his son would be taken to serve. I responded that unless he can provide evidence that this is happening it is just speculation. For the reason that the applicant would be exempt from military service I find that he does not face a real chance of serious harm or a real risk of significant harm.
[24] Immigration and Refugee Board of Canada, Responses to Information Requests IRN104809.E 28 March 2014
The applicant said that his wife would not live in Iran and as a result he will be separated from her and that will destroy him. For this reason I have not considered further any harm that may arise based upon the applicant’s claims of him and his wife not living their life in a way that would be considered acceptable in Iran.
I now turn my mind to considering the second applicant’s claims collectively. Most of his claims relate to a different lifestyle and world view in that he disagrees with the idea of a Supreme Leader and all that it entails, disagrees with the role of religion and acts in ways that could be considered counter to the social and religious norms being enforced by authority structures in Iran. He has argued that such differences will place him at serious risk of harm. Based upon his profile including not having an addiction to alcohol or gambling, not having participated in political activities in Australia and still maintaining an affiliation with Islam though not practicing, country information presents a different view, one which would not place him at a real risk of significant harm or facing a real chance of serious harm. Appearing Western, may lead to a ‘low level’ of harassment, which I find not to amount to serious or significant harm, accessing alcohol and gambling, while illegal is not enforced and having a different view on the government is not the risky endeavour portrayed by the applicant. When considered cumulatively I find that were the applicant engage in the activities upon which he is seeking protection as listed above including to consume alcohol, seek out and participate in gambling and argue over the role and form of the current government he would not face a real chance of serious harm or a real risk of significant harm.
I have also considered the applicant’s concerns over being separated from his wife. The applicant did not present to the Tribunal how his separation from his wife would lead to him suffering harm. Having turned my mind to this question I find that the applicant would not suffer what amounts to serious or significant harm for the reason of being separated from his wife.
The third named applicant does not have claims of her own.
For the reasons given above, the Tribunal is not satisfied that the second named 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 second named 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 second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The first and third named applicants do not satisfy the criterion set out in s.36(2)(aa) for a protection visa.
It follows that all three applicants are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION
Through the process of hearing this case I recommend that the Minister consider the applicant’s case under s.417 of the Act.
The second name applicant was [an age] year old child when he first came to Australia. He is now [age] years old. All he has known is Australia and the Australian way of life. He has not been interested in Iranian politics or the diaspora living in Australia, instead he grew up as what he called an ‘Aussie’ including going to the football and ‘doing Australian things’. He only learned of the circumstances surrounding his family leaving Iran when he finished [school] at which point he could no longer continue his studies nor find work due to the visa conditions imposed upon them. Despite facing a life affecting situation that may well have led others to depression or illegal activities he has had no encounters with the law and instead married an Australian woman.

Through three hearings with the second named applicant I have found him to be genuine in his evidence, respectful of the authority of the Tribunal and committed to his parents and wife. While a partner visa may be an option for the applicant, being an asylum seeker without the right to work and his parents having exhausted their resources he claims it has prevented him from applying for the visa. It is possible that his wife and her family may have the assets required to apply for a visa but this matter, not being a part of the protection visa review process, was not pursued further.
For the reason of the applicant’s young age upon arrival and having spent twelve of his formative years in Australia the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of his circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.
The Tribunal is not making a recommendation for Ministerial intervention on behalf of the primary and third named applicant.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Denis Dragovic
Senior Member

[2017] AATA 2210

13 October 2017

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Immigration

Administrative Law

Statutory Interpretation

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