1514823 (Refugee)

[2018] AATA 3846

1514823 (Refugee) [2018] AATA 3846 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514823

COUNTRY OF REFERENCE:                  Iran

MEMBER:Jason Pennell

DATE:19 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 September 2018 at 12.49pm

CATCHWORDS

Refugee – Protection visa – Iran – Imputed political opinion – Accused of being a spy – Opposed to the Iranian regime – Particular social group – Asylum seeker – De facto relationship with a Christian woman – Contractor for Sepah or Islamic Revolutionary Guard – Breached security conditions – Detained by Sepah – Association with 2009 protests – Breach of Sharia law – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36, 45AA, 46A, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth) r 2.08F, Schedule 2

CASES

MIAC v SZJGV (2009) 238 CLR 642

MIEA and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

SZKHD v MIAC [2008] FCA 112

SZMPJ v MIAC [2008] FMCA 1640

SZMZA v MIAC (No.2) [2008] FMCA 1418

SZOZT v MIAC [2011] FCA 1245

SZRWG v MIAC [2013] FMCA 53

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 October 2015 to refuse to grant the visa applicant a Temporary Protection (Class XD) Subclass 785 visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The visa applicant applied for the visa on 15 August 2013. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be a valid application for a Temporary Protection (Class XD) visa and not a valid application for a Protection (Class XA) visa.

3. The delegate refused to grant the visa on the basis that The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

4. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

1. 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).

2. 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.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]

   [3] s.91R(1)(a) of the Act

8. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] 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.[5]

   [4] s.5(1) of the Act

   [5] s.36(2B) of the Act

Section 499 Ministerial Direction

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant’s migration history and application

1. The applicant’s migration history is noted in the delegate’s decision dated 27 October 2015. The applicant departed Iran via [Airport 1], Tehran on [date] April 2013, transiting in [Country 1] before arriving in [Country 2] on the same date. The applicant left [Country 2] by boat on [date] April 2013 and arrived in Australia on [date] May 2013. The applicant has not left the country since his arrival.

2. Accordingly the applicant is an Illegal Maritime Arrival[6] who arrived directly to the mainland before 1 June 2013.[7]  The applicant arrived prior to 1 June 2013 and did not enter Australia at an offshore location such as Christmas Island.

   [6] an ‘Illegal Maritime Arrival’ is referred to as an ‘Unauthorized Maritime Arrival’ in the Act.

   [7] known as an ‘Offshore Entry Person’ (OEP)

3. The applicant made a protection visa application 15 August 2013. As an ‘unauthorised maritime arrival’ the applicant was prohibited from making a valid application under s.46A of the Act. However, on 29 November 2012 the Minister ‘lifted the bar’ pursuant to s.46A(2) of the Act. As such the application complies with the validity requirements of the Act.

Country of Reference

1. The applicant claims to be citizen of the Iran. The Department of Immigration file No ([DIBP file number deleted]) (‘the department file’) contains a copy of the applicant’s national identity card [number deleted],[8] military service discharge card,[9] birth certificate,[10]  Iranian marriage certificate [number deleted] registration [number deleted][11] and copies of a national identity card and birth certificate of his former wife[12] presented to the department by the applicant as proof of his identity. In addition the applicant provided the department with a public notice of establishment of his company, [Company 1](‘the company’) as published in the Official Gazette of the Islamic Republic of Iran [Issue number deleted] in 2005.[13] The department have reviewed the documentation provided and found there were no irregularities of concern.[14]

   [8] [DIBP file number deleted],f55-56,88

   [9] [DIBP file number deleted],f54 & 86

   [10] Birth certificate is known as a ‘Shenasnaameh’ [DIBP file number deleted],f55-56,88

   [11] The marriage certificate attests to the applicants marriage to his former wife [Ms A]; [DIBP file number deleted],f67-80

   [12] [DIBP file number deleted]

   [13] [DIBP file number deleted],f81-82

   [14] Delegates decision p.2

2. The applicant did not provide a copy of his passport as he said it had been taken from him by people smugglers. It appears therefore that the applicant will not be returning on a valid Iranian passport.

3. The documentation provided by the applicant consistently noted his date of birth as [Date of Birth 1]. However, the applicant’s [State 1] Driver’s license issued 3 March 2014 notes his date of birth as [Date of Birth 2]. In light of the other documentation provided this appears to be an administrative error. Therefore, the Tribunal finds that he is a citizen of Islamic Republic of Iran and that he was born on [Date of Birth 1] in Tehran.

4. Accordingly, the Tribunal finds that the Islamic Republic of Iran is the applicant’s country of reference for the purpose of assessing protection obligations under the Refugee Convention and pursuant to section 5 of the Act.

5. There is no evidence to suggest that he has a right to enter and reside, temporarily or permanently, in any other country. The Tribunal is therefore satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s36(3) of the Act.

The applicant’s protection claims

1. The applicant’s written claims are on the department file and are contained in a statutory declaration entitled Statement of Claim dated 13 August 2013[15] and attached to the applicant’s protection visa application dated 15 August 2013.[16] They are summarised in the delegates decision dated 27 October 2015[17] as follows:

   [15] [DIBP file number deleted],f21

   [16] [DIBP file number deleted],f18

   [17] Delegated decision p.5

   (a)The applicant claims to have been briefly arrested and released without charge during the 2009 election-related protests.

   (b)The applicant claims to have worked in [a specialised role] in Iran since 1993. The applicant claims to have started out working for others and then to have registered his own business in [Industry 1] in 2005.

   (c)The applicant claims that during his time [in Industry 1] he has worked for government agencies such as [list of government agencies deleted].

   (d)The applicant claims that his business started undertaking contract work for Sepah in 2010. The applicant claims that he was offered [work at Military Site 1], for Sepah.

   (e)The applicant claims that that he and his staff were separated and detained by officials at [Military Site 1] [in] 2012 after one of his employees smuggled a mobile phone on site and took a video footage.

   (f)The applicant claims that he was released after [number] days and found that his office had been ransacked. He also claims to have found that his staff on another project had been dismissed and that all his projects were suspended.

   (g)The applicant claims that he was detained for a second time on [date] January 2013 and released on [date] February 2013. The applicant claims that he was interrogated by a vicious torturer during his detention and accused of spying. The applicant claims that he was ordered not to leave Tehran on release.

   (h)The applicant claims that he was detained a third time on [date] March 2013 and asked to sign a declaration. The applicant refused to sign the declaration and was told that his file would be referred to Ettela’at.[18] The applicant claims to have been released after [number] days.

   (i)The applicant claims to have applied for his passport [in] 2013 (after the third release) and to have received it by mail [in]  April 2013. The applicant claims to have checked with the Immigration Police on whether he was allowed to travel overseas and to have left on [date] April 2013.

   [18] The Ettela’at is a conservative newspaper in Iran (see Abdolrasoul Jowkar; Fereshteh Didegah (2010). "Evaluating Iranian newspapers' web sites using correspondence analysis". Library Hi Tech. 28 (1): 119–130. doi:10.1108/07378831011026733)

2. In addition, at the hearing the applicant claimed he cannot return to Iran because he is now in a relationship with [Ms B]. [Ms B] is a Christian woman. He says that they are living as husband and wife and as such he fears being persecuted in the event he returns to Iran due to the fact that it is against the Sharia law to be in a relationship with a non-Muslim person.

3. The applicants evidence was that [Ms B] was granted a [temporary visa] on 16 December 2016.

4. In support of his claims the applicant provided the following:

   (a)Residential Tenancy Agreement dated 2 September 2015 signed by the applicant and [Ms B].

   (b)Gazette of the Islamic republic of Iran [Issue number deleted] - Notice of establishment of [Company 1] dated [2005] (‘the Gazette Notice’).

   (c)[Ms B] [Ultra] sound image dated 16 February 2018.

   (d)Letter from [a medical provider] to [Ms B] dated 31 January 2018.

   (e)[Ms B] Notification of grant of a [temporary visa] dated 30 December 2016.

   (f)Applicant’s [State 1] Driver’s License issued [date] March 2014

Applicant’s evidence.

1. The applicant’s evidence was that he was born in [Province 1], Iran on [Date of Birth 1] and is an Azeri by ethnicity. The applicant resided in Tehran with his wife, [Ms A], his parents and sister until the time he departed for Australia. The applicant’s father worked for [a government agency] until his retirement in 2001 and his mother was [working in a particular role].

2. The applicant initially attended [School 1] in Terhan, but, completed his High School Diploma at [School 2] in Terhan in or about [year]. In or about 2012 the applicant completed an [Advanced] Diploma at [University 1] [Town 1]. In [year] the applicant commenced performed 21 months of military service completing his service in [year].

3. The applicants evidence was that in or about 1993 he started working in [Industry 1].  He initially commenced working for one of his high school teachers on projects associated with his teachers own business. After he completed military service until 2005, the applicant claims that he worked for [Mr C], [Mr D] and [Mr E] [in Industry 1] for a range of high profile clients and government agencies including [list of government agencies deleted].

4. In addition the applicant claimed that he had performed [work] for [a high level government agency]. He said that he was given [specified security access]. The applicant said that he was allocated a period of time (five to ten days) in which to complete the job and allocated areas within the office that he was allowed to access for the purpose of completing his work.

5. In or about 2005 the applicant established the company for the purposes of conducting his own business. The applicant provided a copy of the Gazette Notice as evidence of him establishing the company. The Gazette names the applicant as [holding a senior position in] the company and refers to the company’s objectives as ‘[trading in Industry 1]].’[19] The applicant claims that he maintained an office and staff for the purposes of conducting the company’s business prior to leaving Iran.

   [19]   [DIBP file number deleted] f81-83

1. The applicant claims he was arrested briefly along with students at [University 1] during the 2009 election related protests. He claims that he was held briefly and released without charge. 

2. In or about 2010 the applicant started working for Sepah. He explained that Sepah had a [list] of [businesses] they would contract with from time to time. The applicant evidence was that his company was included on Sepah’s [list] as a result of years of trust he had built up as a result of having worked for them through [Mr C], [Mr D] and [Mr E].

3. The applicant provided details of clients for whom he worked including [a major government project] in [Town 2] which included the installation of[equipment]. The Tribunal refers to the delegate’s decision in which it notes that the applicant’s timeline as to when he claims to have performed works on this project is consistent with the publicly available information about the project.[20]  In addition on the department file is a copy of the applicant’s temporary pass to the site at [Town 2].[21] 

   [20]   Delegates decision 27 October 2015 p.9

   [21]   [DIBP file number deleted] f85

4. He said that in or about 2012 his company was offered a significant project [providing services]in [Military Site 1] , for Sepah.[Sentence deleted]. The applicant noted that the international community had issues with [Military Site 1]. According to the Council of Foreign Relations, Sepah fields an army, navy and air force while managing Iran’s ballistic missile arsenal and regular warfare operations through its elite Quds force and proxies such as Hezbollah.[22] However, Sepah is generally treated predominately as a military land force that parallels a regular army that carries out an internal security and intelligence gathering role.[23]

   [22]   Bruno, G, Bajoria J and Masters, J 2013, Iran’s Revolutionary Guards, Council on Foreign Relations, 14 June p1, CIS25703.

   [23]   Australian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) 2013, Iran: COI Compilation, September UNHCR Refworld, p52, CIS26267.

5. The applicant says that he and his staff were separated and detained by officials at [Military Site 1] [in] 2012 after one of his recently engaged employees, known as [Mr F], had taken a mobile phone onto the site. The applicant’s evidence to the Tribunal was that he could not explain how or why [Mr F] had taken the phone onto the site but stated that once had discovered the phone he directed [Mr F] to take photos and video of the [work] so that they had a reason for having the phone.

6. The applicant claims that as a result of videoing the [work] security guards detained the applicant and his workers and escorted them to a building approximately ten minute away on [Military Site 1]. The applicant’s evidence was that he was separated from his workers and held for a period of [number] days. He said that after his release he went to his office and found that it had been ransacked with all the company’s contracts having been cancelled and his staff dismissed. The applicant’s evidence was that he never returned to his office again.

7. The applicant claims that on [date] January 2013 he was detained on a second occasion and released on [date] February 2013.  He says that he was accused of spying and interrogated and tortured during his detention. He claims that upon his release he was ordered not to leave Tehran.

8. The applicant claims that on [date] March 2013 he was detained for a third time for a period of [number] days. On this occasion he says that he was asked to sign a declaration which he refused. He was then told that his file would be referred to the Ettela’at.  

9. The applicant says that after he was released on the third occasion he applied for a passport he says that he applied for the passport on [date] 2013 and he received it by mail on [date]2013.  The applicant evidence was that he checked to see if he could travel overseas with immigration and left on [date] April 2013.

10. The applicant’s evidence was that since he had been in Australia he has developed a relationship with [Ms B]. He says that they are living together as husband and wife since 2015 and at the time of the hearing [Ms B] was pregnant with their child and was due to give birth in September 2018. The applicant provided the Tribunal a copy of the tenancy agreement as evidence of them cohabitating as husband and wife. The applicant said that his wife had arranged for a divorce in Iran but could not provide any documentary evidence of the divorce.

11. The applicant’s evidence was that he cannot return to Iran due to the fact that [Ms B] is not a Muslim. He says that he fears being persecuted in the event he returns to Iran due to the fact that he had acted against the Islamic faith by being in a relationship with a person who is not a Muslim.

12. The applicant claims to have a well-founded fear of persecution whether singularly or cumulatively if returned to Iran by reason that:

    (a)As a member of a social group of being accused or having the imputed political opinion of being a spy.

    (b)His imputed political opinion of being opposed to the Iranian regime by his rejection of the Islamic faith.

    (c)As a member of a social group as a person in a relationship (living as husband and wife) with a non-Muslim person.  

    (d)His imputed political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad arising from his claim for asylum in Australia.

COUNTRY INFORMATION

1. The DFAT country Information report dated 9 June 2018 (‘the DFAT Report’) in relation to religious based charges notes that:

   IRGC

   5.7 The IRGC has the responsibility for ‘guarding the Revolution and its achievements’ and is considered Iran’s most powerful internal security force, at times cooperating and competing with the Ministry of Intelligence and Security and other security organisations. While generally held up as a politically conservative organisation there is thought to be a range of opinion within the IRGC. Iranian Governments of conservative or moderate/reformist persuasions find politically congenial members of the IRGC to appoint to important positions. The IRGC has a powerful intelligence arm that carries out domestic intelligence operations—including against political activists—that is believed to operate largely separately from other organisations. The IRGC intelligence arm carries out arrests and maintains its own detention facilities. The IRGC was active in clamping down on the 2009 post-election protests, and was active in monitoring political activity during the 2013 elections.

Apostasy

1. In relation to apostasy the DFAT report states as follows:[24]

   3.52 Under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy. While cases of apostasy are rare, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam, and others who espouse unconventional religious beliefs have been charged with apostasy in the past. Apostasy charges have also been applied against political opponents of the regime.

   3.53 The punishment for apostasy is subject to judicial discretion. There is no provision in Iran's Penal Code criminalising the act. Nevertheless, Article 167 of the Iranian Constitution requires judges to apply Shari’a in situations in which the law is silent and Article 220 of the Iranian Penal Code effectively states that crimes punishable under Iranian law are not limited to the ones specified in the Penal Code. According to Article 160 of the Iranian Penal Code, confessions, the testimony of two male witnesses or the ‘knowledge of the judge’ can each be the basis for a conviction. In the rare instances that they are applied, charges of apostasy have in the past resulted in the death penalty and are often combined along with other crimes related to national security such as waging war against God and the Prophet.

   3.54 The most recent case that DFAT is aware of a person charged with apostasy and sentenced to death was that of Youcef Nadarkhani in 2011. As a result of sustained international pressure, Nadarkhani’s conviction of apostasy was commuted to one of proselytization and the death sentence was dropped. The last known time the death penalty was carried out for apostasy was in 1990.

   3.55 DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants (see ‘Christians’, above).

   3.56 DFAT is aware of allegations that authorities monitor attendance at churches on religious holidays to ensure no Muslims are present, along with reports that churches self-monitor congregations to ensure no Muslims are present. However, DFAT assesses that Iranian authorities will rarely intervene actively to stop Muslims attending churches whilst their attendance is low-key.

Interfaith marriage - Muslim Man and Non-Muslim Woman

[24] DFAT Report dated 21 April 20116 @ p.14

1. An article on interfaith marriage notes in relation to a marriage between a Muslim man and a non-Muslim woman[25]  notes that in general Muslim men are not permitted to marry non-Muslim women.

   "Do not marry unbelieving women until they believe. A slave woman who believes is better than an unbelieving woman, even though she allures you. ... Unbelievers beckon you to the Fire. But Allah beckons by His Grace to the garden of bliss and forgiveness. And He makes His signs clear to mankind, that they may receive admonition." (Qur'an 2:221).

   [25] >

   The article notes that an exception of interfaith marriage in Islam is made for Muslim men to marry pious Jewish and Christian women or women who don't engage in immoral conduct (chaste women). This is because marriage is not based on fulfilling sexual desires. Instead, it is an institution that establishes a home built on tranquillity, faith, and Islamic morals. The exception comes from the understanding that Jews and Christians share similar religious outlooks—a belief in One God, following the commandments of Allah, a belief in revealed scripture, etc.:

   "This day are all things good and pure made lawful to you. ... Lawful to you in marriage are not only chaste women who are believers, but chaste women among the People of the Book revealed before your time when you give them their due dowers, and desire chastity, not lewdness. If anyone rejects faith, fruitless is his work, and in the Hereafter, he will be in the ranks of those who have lost." (Quran 5:5).

2. The children of such a union are always to be raised in the faith of Islam.

Conditions for Returnees

1. The DFAT report states that Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. However, on 18 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

2. The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. The DFAT report states that the authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.

3. The DFAT report states that according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. It notes that Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[26]

   [26] s.5AAA Migration Act 1958. MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[27] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [27]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[28] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Accepted facts

[28]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. Based on the applicants evidence the Tribunal accepts and finds that:

   (a)he was born on [Date of Birth 1] in [Province 1], Iran.

   (b)he is an Azeri by ethnicity.

   (c)his father worked for [a government agency] until his retirement in 2001 and his mother was [working in a particular role].

   (d)he resided in Tehran with his wife, parents and his sister until the time he departed for Australia

   (e)he attended the [School 1] in Terhan, but, completed his High School Diploma at the [School 2] in Terhan in or about [year].

   (f)he completed an  [Advanced] Diploma at [University 1][Town 1] in 2012.

   (g)he performed 21 months of military service From [year] to [year].

   (h)in or about 1993 he started working in  [Industry 1].

   (i)in or about 2005 he established the company and commenced [providing specialised services].

   (j)he was briefly arrested and released without charge during the 2009 election-related protests.

   (k)he is divorced from [Ms A].

Applicant’s claim as a refugee

1. The applicant claims that in the event he is returned to Iran there is a real chance he will suffer serious harm by reason of the following:

   (a)his imputed political opinion of being opposed to the Iranian regime by having being accused of a spy.

   (b)his imputed political opinion of being opposed to the Iranian regime by having rejected the Islamic faith

   (c)as a member of a social group consisted of those who have married or are in a relationship with a non-Muslim person. 

   (d)his imputed political opinion of being opposed to the Iranian regime by having alleged persecution by the regime abroad arising from his claim for asylum in Australia.

2. As a result the applicant claims that he is a person who has a well-founded fear of persecution, pursuant to Article 1A(2) of the Convention. That is, there is a real chance he will suffer serious harm if he returns in Iran by reason of his imputed political opinion having been accused as a spy and by reason of his religion and as a member of a social group as a person who has breached the Islamic faith by entering into a relationship with a non-Muslim person.  

2009 arrest

1. The applicant claims that he was arrested briefly during the 2009 election related protests. He said that he was held briefly and released without charge. The applicant’s account of the incident is broadly in keeping with the country information regarding the 2009 election demonstrations and arrests of student protestors.[29] Accordingly the Tribunal accepts the applicant evidence and finds that he was arrested briefly and released without charge during the 2009 election demonstrations.

   [29] United Nations Human Rights, ‘Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran’ United Nations Human Rights Council, 01 February 2013; The Guardian, ‘New Protests in Iran.’ Matthew Weaver and Saeed Kamali Dehghan, Wed 4 Nov 2009.

2. However, given the fact that he was released without charge and the fact that he had become a trusted contractor for a number of government agencies, including Sepah, the Tribunal finds that the applicant’s participation and arrest during the 2009 election protests did not elevate his political profile in the event that he returns to Iran. Accordingly, it finds that there is no real chance of serious harm or real risk of significant harm to the applicant by reason of his involvement in the election protests.  

Detention at the Sepah camp- [date] 2012

1. The applicant claims that while working at [Military Site 1]  one of his employees, [Mr F], took a mobile phone onto the site. Mobile phones and other devices are expressly forbidden on at the site. The applicant claims that in order to have an excuse for having the phone on the site he instructed [Mr F] to take photos and film of  [their work]. The applicant conceded that he had made a mistake in asking [Mr F] to take the footage on his phone but said that he thought it would give them an excuse for having the phone in the event they were stopped by the security guards for having it in their possession. While the Tribunal accepts that errors of judgement do occur (not only by those with limited experience) the applicant was an experienced contractor having worked for Sepah and other government agencies in [Industry 1] for many years. He had built up a [reputation] within the industry to the point that he had become [an accepted] contractor to Sepah and other agencies. As such he was aware of the restrictions imposed by Sepah when working at one of their locations.  The Tribunal finds it improbable that the applicant would have put himself and his employee’s safety into question by drawning attention to the fact they were in possession of a mobile phone by directing [Mr F] to take photos and footage of [their work]. Given his good reputation, it would have been simpler and less suspicious to have merely volunteered the phone to the security guards.

1. The applicant claims that he was held in a house inside [Military Site 1] for a period of [number] days. During his detention he said that he was questioned about his life and employees use of the mobile phone. Eventually he was released and told to stay at home. He claims that after his release discovered that his office had been ransacked and that his staff on another project had been dismissed and that all his projects were suspended.

2. The applicant confirmed to the Tribunal that while he was detained no official had visited his home or approached his wife or any other family member. His evidence was that when he arrived home despite his wife wanting to know where he had [been], he did not mention anything about his detention. The applicant agreed with the Tribunal that his detention was a harrowing and frightening experience and that it would be normal for a person who had been through such an experience would want to talk about it with his family and close friends.  As such, the Tribunal finds the applicant’s evidence that he did not speak to his wife about his detention is highly improbable and lacking in credibility and as such is not accepted by the Tribunal.  

3. Therefore, while the Tribunal accepts that the applicant worked in [Industry 1] and performed work for Sepah  [it] does not accept that the applicant was detained by Sepah for a period of [number] days. In circumstances where the applicant had experience working for Sepah for many years, it finds that the applicant did not allow any of his employees to carry a mobile phone on the site. If any of his employees did take a phone onto the site as claimed, in circumstances where a mobile phone is not allowed on the site, the Tribunal finds it unlikely that any person would draw attention to themselves by openly taking photos and filming [their work]. Accordingly, the Tribunal does not accept the applicant’s evidence that [Mr F] took a phone onto the site and as a result the applicant instructed him to take photos and film the [work] as claimed. Accordingly, the Tribunal does not accept the applicant’s evidence and finds that he was not detained by Sepah for a period of [number] days.  

Applicant’s detention [date] January 2013

1. The applicant claims that he was detained for a second time on [date] January 2013 and released on [date] February 2013. The applicant claims that he received a telephone call advising him that ‘they’ wanted to take him back to [Military Site 1]. The applicant confirmed that he was picked up by two officials and taken to [Military Site 1]. He said that at that time he did not feel in danger and as a result did not tell his family where he was going. The applicant’s evidence was that initially nothing happened however, on the second day he was questioned about being a spy and questioned about working for [western countries]. He said that he was questioned, beaten and threatened every day for period of [weeks] until his release on [date] February 2013. Upon his release he says that he was told not to leave Terhan. He did not receive any medical treatment upon his release. 

2. The applicant was not able to tell the Tribunal who called him or where he received the call. That is, he could not recall if he received that call in his home or on his mobile phone.  The applicant said that after his release he spoke to his wife at work but did not tell her that he had been detained and held at [Military Site 1]. He said that after his return she went to live with her parents and their relationship went ‘cold.’ In the circumstances, the Tribunal does not accept that the applicant was detained on [date] January 2013 as claimed. The applicant’s evidence concerning his detention was vague and lacking in detail as it was described only in the broadest of terms. For what must have been a frightening and harrowing experience, the applicant was not able to provide the Tribunal with any details of his confinement and detention or the circumstances in which he was detained. Despite being asked about details of his detention and his surrounds the applicant was not able to provide such detail to the Tribunal. While the tribunal accepts that a person my suffer vagueness or loss of memory as a result of having suffered from some type of trauma, there was no suggestion by the applicant that he had suffered such memory loss as a result of his experience of having been detained. Accordingly the Tribunal does not accept the applicant’s evidence and finds that he was not detained on [date] January 2013 as claimed.

Applicant’s detention [date] March 2013.

1. The applicant claims that he was detained a third time on [date] March 2013. He claims that he was detained at [Military Site 1] once again but in a different building. During his detention he was asked to sign a declaration admitting that he had made a mistake, that he had been deceived by foreign agents and that he would return to the religion of Islam.[30] The applicant refused to sign the declaration. He said that as a result of refusing to sign the deceleration he was told that his file would be referred to Ettela’at.[31] It was not clear to the Tribunal the significance of this action but presumably it was to publically expose him as a spy and as a person who had rejected Islam. The applicant said that he was asked questions about his Islamic adherence before his release. The applicant claims that he was released after [number] days. He said that after his release he spoke to a friend named [Mr G], a Basji commander who told him that he would be executed and there was nothing that could be done to help him.  Finally, he said that after his release he spoke to his father who told him to leave Iran.

   [30] Applicant’s Statement of Claim dated 13 August 2013 @ paragraph 20.

   [31]  Ettela'at is a Persian language daily newspaper published in Iran. It is among the oldest publications in the country.

2. In circumstances where the applicant claims to have been detained physically abused on two previous occasions it seems unlikely that the authorities would have released him without having him sign the declaration as demanded without any significant consequences arising from his detention. In contrast to his previous encounters he was free to leave without having signed the declaration and without having incurred any physical abuse. The applicant’s claim that he was released on the third occasion by the authorities on threat of his file being released to the Ettela’at lacks any reason or credibility and is simply not believed by the Tribunal.  Accordingly, the Tribunal finds that the applicant was not detained as claimed on [date] March 2013. 

3. Finally, despite the applicant’s claim that the authorities demanded he remain in Terhan, he applied for his passport on [date] 2013 and received it by mail on [date] 2013. In addition, he claims that he had checked with immigration on whether he was allowed to travel overseas and left the country on [date] April 2013.[32] Therefore, given the ease with which he was able to apply and obtain a passport the Tribunal does not accept that he was a person of interest to the Iranian authorities and that he was detained as claimed.

   [32] Applicants Statement of Claims dated 13 August 2013 @ paragraph 22

4. While the Tribunal accepts that it may take up to three months for a travel ban to be issued in Iranian, it does depend on the circumstances on each case.[33] In this case, based on the country information, the Tribunal does not accept that a formal court process would be required to obtain a travel ban against the applicant. The DFAT Report notes that although it is difficult to give an exhaustive list of agencies which give information relating to blacklists, they include the Intelligence Ministry, the Revolutionary Court and Disciplinary Forces.[34] DFAT notes that Sepah is also an agency that is rumored to have input on such lists.[35] Therefore, the Tribunal finds that the Iranian government agencies, including Sepah, would have had ample time from the time he was first detained until his departure from the country to place the applicant on a travel ban list if he had been considered a person of interest. Accordingly the Tribunal finds that there was no restriction on the applicant from leaving the country.

   [33]   Danish Immigration Service 2009, Human Rights Situation or Minorities, Women Converts and Entry and Exit procedures, ID Cards, Summons and Reporting, ect: Fact finding mission to Iran 24^th August -2^nd September 2008, April , pp40-41, CIS 17329; Department of Foreign Affairs and Trade 2013, DFAT Country Information Report Iran 29 November section 5.20, p.25. 

   [34]   Department of Foreign Affairs and Trade 2013, DFAT Country Information Report Iran 29 November section 5.20, p.25. 

   [35]   Department of Foreign Affairs and Trade 2005, Exit Procedures from Iranian Airports, 21 June CX124083.

5. Therefore, for the reason outlined above the Tribunal does not accept the applicant’s evidence regarding his profile with the Iranian authorities at the time of his departure. Accordingly the Tribunal finds that the applicant was not detained as claimed and therefore was not accused of spying or apostasy as claimed.

The applicant being non-religious

1. The applicant evidence was that during his detention from [date] March 2013 he was asked to sign a declaration which stated amongst other things that he repented ‘from what he had done’ and that he would ‘return to the religion’ of Islam.[36] The applicant’s evidence was that he refused to sign the declaration as he was not a religious person. The Tribunal notes that in his application for a protection visa the applicant states that he does not follow any particular religion[37] and that he has ‘no religion.’[38]

   [36] Applicants Statement of Claim dated 13 August 2013 @ paragraph 20.

   [37] Applicant Statement of Claim dated 13 August 2013 paragraph 1

   [38] [DIBP file number deleted] f29

2. The applicant, however, did not provide any independent evidence in support of his claim that he does not follow any religion or that he has renounced a particular religion.  However, the Tribunal notes that the applicant claims to be ethnic Azeri. The country information indicates that the majority of Azeris are followers of Shia Islam. It is reported that they commemorate Shia holy days[39] at least with the same intensity as other Iranians. It reported that in metropolitan cities, such as Tehran, Azeris are particularly intense in their expression of religious ritual.[40] Therefore, while the Tribunal accepts that the applicant is not a follower of any particular religion, being Azeri and born in Iran he would have been considered Muslim at birth and raised in the Islamic faith.  Despite this fact, based on the country information as a person who ‘does not follow any religion’ such as the applicant is unlikely to come to the attention of the authorities. 

   [39] The ten first days of the holy month of Muharram.

   [40] R. Khanam, Encycl. Ethnography Of Middle-East And Central Asia, 2005, vol. I, p. 80

3. In any event, the Tribunal notes that according to the World Values Survey nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[41] This would suggest that the applicant’s rejection religion and in particular the Islamic faith would not be noticed. With no evidence to suggest that he would act in a manner that would draw attention to his rejection of Islam I find that the chance of the applicant facing any harm as a result of rejecting Islam is remote.

   [41]   World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16] 

The applicants claimed adverse political profile.

1. In his written claim, the applicant states that he has an adverse political file and that he has been identified as a spy and as a person who is against Islam. The applicant claims that he applied for a passport on [date] 2013 and received by mail on [date] 2013. The applicant confirmed with the immigration [police] in Tehran if he was allowed to travel overseas and left the country by aircraft to [Country 2] on [date] April 2013.  

2. While the Tribunal accepts the applicant’s evidence and finds that he left Iran using his own passport,[42] it has rejected his evidence and found that he was not interrogated or detained at a Sepah camp on the three occasions as claimed.. Therefore, having rejected that the applicant’s evidence concerning his detention, there is no basis upon which the applicant can claim to have an adverse political profile. As such the Tribunal finds that the applicant does not have an adverse political file and is not identified as a person against Islam as claimed.

   [42] Delegates decision dated 10 June 2015 @ [3]

Applicant’s marriage to a Non-Muslim

1. Finally, at the hearing the applicant claimed he cannot return to Iran because he is now in a relationship with [Ms B], a non-Muslim person. He says that they are living as husband and wife and as such he fears being persecuted in the event he returns to Iran due to the fact that he has acted against the Islamic faith and Sharia Law to be in a relationship with a non-Muslim person.

2. [Ms B] attended the hearing and the Tribunal accepts the applicant’s evidence that they are living as husband and wife and that at the time of the hearing where expecting a child.

3. Section 91R(3) requires the decision maker to disregard conduct engaged in by an applicant in Australia unless satisfied that the conduct has been engaged in ‘otherwise than for the purpose of strengthening the person’s claim to be a refugee’. This means that where conduct in Australia could strengthen a person’s refugee claim, the decision maker must consider the applicant’s motivation for engaging in the conduct before considering the consequences that may flow from that conduct.[43] For the purposes of s.91R(3) the conduct must have been engaged in for the sole purpose of strengthening the refugee claim.[44] This is a question of fact[45] and the onus is on the applicant to satisfy the decision maker as to his or her motivation.[46]

   [43]   SZOZT v MIAC [2011] FCA 1245 (Foster J, 3 November 2011), SZRWG v MIAC [2013] FMCA 53 (Driver FM, 26 March 2013).

   [44]   MIAC v SZJGV (2009) 238 CLR 642, per French CJ and Bell J at [13], per Crennan and Kiefel JJ [59]–[60].

   [45]   SZKHD v MIAC [2008] FCA 112 (Collier J, 19 February 2008) at [31].

   [46]   See SZMZA v MIAC (No.2) [2008] FMCA 1418 (Smith FM, 21 October 2008) at [16]-[17], finding an erroneous application of s.91R(3) where the Tribunal took account of conduct in Australia where it was left in doubt about the applicant’s motives for engaging in the relevant activities. See also SZMPJ v MIAC [2008] FMCA 1640 (Smith FM, 17 December 2008) at [25]-[27].

4. In this case the Tribunal is satisfied that the applicant has not engaged in the relationship with [Ms B] for the purpose of strengthening the person’s claim to be a refugee. The Tribunal is satisfied that they are in a genuine relationship and that at the time of the hearing where expecting a child. 

5. The country information reports that more and more couples in Iran are living together despite the fact that they are not married.[47] Despite Iran's strict Islamic laws, increasing numbers of young couples are choosing to live together before marriage. It has become so prevalent that the office of the Supreme Leader has issued a statement expressing deep disapproval.[48] Despite the statement of disapproval there is no evidence of any couple being arrested for living together as man and wife. Therefore, it appears from the country information that that there is not a real chance the applicant would face serious harm as a result of him living with [Ms B] as husband and wife.  

   [47]   Sharia Law 11 February 2013 by Yalda Zarbakhch;

   [48] ‘Can Iran 'control' its cohabiting couples? 10 December 2014

6. In addition country information makes it clear that it is possible for a Muslim man to marry a “chaste” Christian or Jewish woman. The applicant and [Ms B] are not married. Therefore, the fact that she is a Christian is not a reason for there being real risk that he would suffer serious harm in the event he returns to Iran.  

Applicants potential adultly  

1. Finally, there is a potential claim that the as a result of his relationship with [Ms B] the applicant has committed adultly and as such faces a real chance of being seriously harmed. The applicant did not make this claim himself.

2. The issue for the Tribunal to determine is whether the applicant's circumstances satisfy any of the refugee Convention grounds. The November 2016 UK Home Office Report entitled “Country Policy and Information Note Iran: Adulterers version 2.0” states at paragraph 2.2 that:

   “Adulterers in Iran form a particular social group (PSG) within the meaning of the Refugee Convention. This is because they share an immutable (or innate) characteristic – the fact that they have (allegedly) committed adultery – that cannot be changed: and have a distinct identity in their home society. Adultery is a specific crime in Iran and punishable by disproportionately severe sentences. In the Court of Justice of the European Communities judgement for the joined cases of C-100/12, dated November 2013 (2013) WLR(D) 427, (2013) EUECJ C-199/12), the court held that “the existence of criminal laws which specifically target the group concerned, supports the finding that those persons must be regarded as forming a particular social group' (Ruling point 1).”

3. Although adulterers in Iran form a particular social group, establishing membership to such a group is not of its own sufficient to make out a case for a person to be recognised as a refugee. A finding must be made as to whether the person faces a real risk of persecution on account of their membership of that group.

4. The UK Report goes on to state that whilst strict standards of proof are required in order to convict someone of adultery, the Penal Code allows the judge to use their “knowledge” in cases of morality crimes and as such, the judge is able to determine a person's guilt in the absence of any direct evidence. The Report states that women are at a greater risk of being accused and convicted of adultery owing to negative social stigma associated with women's sexuality, discriminatory laws, and societal acceptance of honour crimes.

5. the UK Report[49] sets out the key considerations in claimed adultery  cases as:

   [49] The November 2016 UK Home Office Report entitled “Country Policy and Information Note Iran: Adulterers version 2.0” @ paragraph 2.3.7

   • the marital status of the person, and whether they did indeed commit adulterous acts or have been perceived to have committed such acts;• whether they (have been perceived to) have had a relationship with a married (other than their spouse) or unmarried person;

   • whether the act was known or likely to be made known publicly, to the families or to the Iranian authorities.

6. The Tribunal has accepted the applicant’s evidence and found that his wife, [Ms A] had arranged for a divorce. Accordingly, based on the applicant’s marital status of him being divorced, the Tribunal finds that there is no real chance that he suffers serious harm for being in a relationship with [Ms B], in particular as a result of any clam of adultery, in the vent he returns to Iran.

7. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed, in the event that he returns to Iran, by reason of him having rejected Islam or as a result of being in a relationship with [Ms B] as claimed.  

Imputed political opinion as a failed asylum seeker

1. The Tribunal has considered that if the applicant is removed from Australia to Iran as a failed asylum seeker and/or a forced returnee the possibility that he may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.

1. However, the advice from DFAT[50] is that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result. The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities. The Tribunal accepts that the applicant does not currently have a valid passport. The Tribunal further accepts that the applicant may be asked questions both in Australia at the time when his departure is being organised (voluntary or involuntary) and upon his return to Iran.

   [50] DFAT advice dated 9 June 2018

2. The Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case ‘examined in detail’, as a forced returnee. 

100.The Tribunal has not accepted the evidence of the applicant in relation to his detention and treatment at [Military Site 1]  on the three occasions as claimed. Therefore, in the event that the applicant is stopped and interviewed, given that the Tribunal has not accepted the applicants evidence in relation to his detention, it finds that there is no real chance the will suffer serious harm as a result of adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.

101.In addition the Tribunal finds that based on the country information there is no real chance of him being seriously harmed by reason of his rejection of Islam in the event that he is stopped, interviewed and his case is examined in detail, as a forced returnee.

102.Finally, Tribunal has found there is no real chance he will be seriously harmed by reason of his relationship with [Ms B] in the event he returns to Iran. Therefore, while the Tribunal accepts he may be questioned by authorities, based on the country information and that fact that the Tribunal has not accepted the applicant’s evidence in relation to his detention as claimed, the Tribunal finds that there is not a real chance of the applicant being seriously harmed by reason of being a failed asylum seeker returning to Iran.

103.While the Tribunal accepts that the applicant has a subjective fear of persecution in Iran because his rejection of religion and in particular Islam, given the finds above the Tribunal does not accept that there is a real chance he will be persecuted on return to Iran, either now or in the reasonably foreseeable future by reason of religion or for any other Convention reason. 

104.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real chance that the applicant will suffer serious harm.

105.The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is not a person to whom Australia has protection obligations under the Refugees Convention.

Applicant’s complementary protection claim

106.The applicant claims that, without conceding in any way his claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm from the authorities on return his return to Iran on the basis that:

(a)he has been accused of a spy.

(b)he has rejected the Islamic faith.

(c)he is in a relationship with a non-Muslim person. 

(d)he would be accused of being opposed to the Iranian regime by having alleged persecution by the regime abroad arising from his claim for asylum in Australia.

Applicants profile as a spy

107.For the reason set out above the Tribunal does not accept the evidence of the applicant in relation to his detention and interrogation at [Military Site 1] [in] 2012. The Tribunal finds that in circumstances where the applicant had experience working with Sepah, had the trust of the organisation and was aware of the conditions of entry onto the site that his employee would have taken a mobile phone on [Military Site 1]. Further, even if his employee did take a phone onto the site as claimed the Tribunal does not find it credible and does not accept that the applicant told his employee to take video of the [work] in circumstances where he knew they would be exposed to harsh penalties by possessing and taking the video footage as claimed.  In addition, the applicant’s evidence that he did not mention his detention to his wife after such a frightening and harrowing experience lack credibility and is not accepted by the Tribunal. Accordingly the Tribunal does not accept that the applicant was detained and subjected to harsh and inhuman treatment [in] 2012 for a period of [number] days as claimed by the applicant and as such the Tribunal finds that he does not face a real risk of significant harm as a result of his detention and treatment [in] 2012 as claimed.

108.In addition, the Tribunal does not accept the evidence of the applicant in relation to his detention and interrogation at [Military Site 1] on [date] January 2013. The applicant’s evidence concerning his detention on this occasion was vague and lacking in detail and only described to the Tribunal in the broadest of terms. Despite what must have been a frightening and harrowing experience, the applicant’s did not provide the Tribunal with any details of his confinement and detention. In the circumstances that applicant’s evidence lacked credibility due to his inability to provide details of his detention. Accordingly the Tribunal does not accept the applicant’s evidence and finds that he was not detained on [date] January 2013 as claimed. It therefore finds that the applicant does not face a real risk of significant harm as a result of his detention and treatment on [date] January 2013 as claimed.

109.Finally the Tribunal does not accept the evidence of the applicant in relation to his detention and interrogation at [Military Site 1] on [date] March 2013 as claimed. In circumstances where the applicant claims to have been detained and released on three occasions it seems unlikely that the authorities would have released him without having him sign the declaration as demanded. The applicant’s claim that he was released on the third occasion by the authorities on threat of his file being released to the Ettela’at lacks any reason or credibility and is simply not believed by the Tribunal.  Accordingly, the Tribunal finds that the applicant was not detained as claimed on [date] March 2013 and as such the applicant does not face a real risk of significant harm in the event he is returned to Iran. 

110.Finally, despite the applicant’s claim that the authorities demanded he remain in Terhan after he was allegedly released for detention on each occasion, on [date] April 2013 he applied for a passport and received it by mail [in] April 2013. The applicant claims to have left the country on [date] April 2013 after confirming with the Immigration Police that he was permitted to travel overseas.[51] Therefore, given the ease with which he was able to apply and obtain a passport the Tribunal does not accept that he was a person of interest to the Iranian authorities and that he was detained on the three occasions as claimed. Accordingly, the Tribunal finds that applicant is not known as a dissident by the authorities in Iran and has no pre-existing adverse profile. That is it finds that there is not a real rick of the applicant suffering significant harm in the event he returns to Iran by reason of him being accused as a spy.

[51] Applicants Statement of Claims dated 13 August 2013 @ paragraph 22

Applicant’s rejection of the Islamic faith

111.For the reason outlined above the Tribunal finds that the applicant’s rejection of Islam would not be noticed by the authorities. Other than claiming that he asserted that he had rejected Islam while being detained on the second occasion he did not provide any other evidence in support of his claim.  The Tribunal has found that he has rejected religion, based on the country information that nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[52] The applicant did not give any evidence of his propensity to express his religious view in a public manner. In fact, having worked for Sepah and other government agencies it appears more likely that the applicants practice was to keep his view to himself. As such, as a Muslim who had left his faith he did not come to the attention of authorities. Further the DFAT report considers it unlikely that individuals will be prosecuted on charges of apostasy. Therefore in the event that he returns to Iran the Tribunal finds that applicant as a Muslim who has left his faith, he is unlikely to to the attention of authorities or to be prosecuted for apostacy. As such, the Tribunal finds that there is not real risk that the applicant will suffer significant harm in the event he is returned to Iran by reason of him not following any religion as claimed. 

[52] World Values Survey, ‘Iran Wave 2005-2009 Online Data Analysis: V186.- How often do you attend religious services’, available at [accessed 16 Sept. 16] 

Applicant’s marriage to a Non-Muslim

112.For the reason outlined above the Tribunal rejects that applicants claim that he cannot return to Iran because of his relationship with [Ms B], a non-Muslim person. The applicant says that they are living as husband and wife and as such he fears being persecuted in the event he returns to Iran due to the fact that their relationship is against the Islamic faith and Sharia Law. While the country information is clear that it is possible for a Muslim man to marry a Christian woman, nevertheless, despite Iran's strict Islamic laws, increasing numbers of couples are choosing to live together before marriage. The country information reports that more and more couples in Iran are living together despite the fact that they are not married.[53] Despite the Supreme Leader’s disapproval[54] there is no evidence of any couple being arrested for living together as man and wife. Therefore the Tribunal finds that there is no real risk of the applicant suffering significant harm in the event he returns to Iran by reason of the fact that [Ms B] and the applicant are unmarried but living as husband and wife. 

[53]   Sharia Law 11 February 2013 by Yalda Zarbakhch;

[54] ‘Can Iran 'control' its cohabiting couples? 10 December 2014

Imputed political opinion as a failed asylum seeker

113.For the reason outlined above the Tribunal finds that if the applicant is removed from Australia to Iran as a failed asylum seeker and/or a forced returnee the possibility that he will not be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad. The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result. The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities. While the Tribunal accepts that the applicant does not currently have a valid passport and that he may be asked questions both upon his departure from Australia and upon his return to Iran based on the country information and for the reasons stated before the Tribunal finds that as an individual[55] the applicant will not be prosecuted as an asylum seeker.

[55] DFAT advice dated 21 April 2016

114.The Tribunal has rejected the applicant’s evidence concerning his detention on each of the three occasions as claimed and has found that there is no real risk that he will suffer significant harm upon his return to Iran as a result of his rejection of Islam or as a result of his relationship with [Ms B]. Therefore, having assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case ‘examined in detail’, as a forced returnee the tribunal is satisfied that he will not suffer significant harm in the event that he returns to Iran. Accordingly, the Tribunal finds that there is not a real risk of the applicant suffering significant harm by reason of being a failed asylum seeker returning to Iran.

115.Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSIONS

116.The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

117.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 to whom Australia has protection obligations under s.36(2)(aa).

118.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) for a protection visa.

DECISION

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

Jason Pennell

Member