1515194 (Refugee)

[2018] AATA 4501

1515194 (Refugee) [2018] AATA 4501 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515194

COUNTRY OF REFERENCE:                  Iran

MEMBER:Jason Pennell

DATE:24 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 September 2018 at 3.14pm

CATCHWORDS

REFUGEE – Protection visa– Iran – social group – a person who has identified and exposed corruption in Iran – imputed political opinion – opposed to the Iranian regime – failed asylum seeker –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 45AA, 65, 91, 499

Migration Regulations 1994, r 2.08F, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 21 October 2015 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 11 April 2014. 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 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 14 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

7.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

8.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).

9.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.

10.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.

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

12.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

13.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.

14.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

15.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.

16.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.

17.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

18.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’).

19.‘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

20.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

21.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) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant’s migration history and application

22.The applicants migration history is noted in the delegate’s decision dated 21 October 2015. The applicant initially arrived in Australia on 16 November 2007 travelling on a [temporary] Visa on an Iranian passport. He departed after his visit on 27 December 2007. He re-entered Australia on 17 July 2010, again on [the same] Visa, and departed on 13 October 2010. He returned to Australia on 18 February 2014 traveling on [another temporary] Visa. He applied for a Protection (Class XA, Subclass 866) Visa on 11 April 2014.

Country of Reference

23.The applicant claims to be citizen of the Iran. The Department of Immigration file [No] (‘the department file’) contains a copy of the applicant’s Islamic Republic of Iran Passport[6] issued [in] 2009 and expired [in] 2014, his Birth Certificate[7] and National ID [Card][8] which were presented to the department by the applicant as proof of his identity. Each document refers to the applicant’s date of birth as [date of birth]. His passport and birth certificate note that he was born in [County 1], Iran.

[6] [File number deleted].

[7] [File number deleted].

[8] [File number deleted].

24.Based on the documents provided by the applicant theTribunal finds that he is a citizen of Islamic Republic of Iran and that he was born [date of birth] in [County 1], Iran. 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.

25.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

26.The applicant’s written claims are on the department file [at] folios 24-27 and 73-76 and are summarised by the delegate’s decision dated 21 October 2015[9] as follows (‘the written claims’): 

(a)The applicant claims that he will be killed or disappear if he returns to Iran because he has information regarding corruption perpetrated by members of the Revolutionary Guard Corps (Sepah) in [a specified] Industry. He claims that this information represents evidence of high level corruption involving billions of Rial by this organisation. He claims that this corruption was in form of rigged tenders for infrastructure projects.

(b)The applicant claim to have commenced his employment in the [industry] around 2006 and become concerned about corruption in the tender process at his work region of [Region 1] in 2009. He claims to have confronted those who he suspected of corruption in 2011 who first attempted to bribe him and then, when the bribe attempt was unsuccessful, threatened to kill him. He claims to have obtained verbal confessions from some of the persons who normally held the contracts in March 2012. More detailed and serious threats by a [Mr A], allegedly his immediate predecessor and the alleged ringleader of the corruption ring, followed this revelation.

(c)The applicant claims that he fled his place of work as a result of his fear that these threats might be carried out, relocated for short stays around Iran for 20 months and then travelled to Australia in February 2014.

(d)The applicant claims that he feared being eliminated as a threat to the interests of senior figures in Sepah because of the corruption laws in Iran. He claims that these figures are concerned at future changes in the Government in Iran and that there is evidence of the level of corruption committed by senior Sepah personalities, they will be executed for their criminal activities. He claims to be a source of the evidence although he was unable to remove contracts, accounts and any other documentary evidence of this corruption in the tender process.

[9]    [File number deleted] f88-93

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

(a)Applicant’s Statutory Declaration dated 11 August 2015.

(b)[Company 1] Employment Certificate dated [date] 2007.

(c)Certificate of Employment by [Company 2] dated [date] 2012.  

(d)Letter of Introduction by [Company 3] Auditors dated 22 February 1972.

(e)Letter of acknowledgment from [a] Conference dated 9 November 21984.

(f)Applicants Birth Certificate.

(g)Applicants National ID [Card], expiry [2012].

(h)Applicants Transcript of Divorce Deed dated [1996].

(i)Applicant’s Islamic Republic of Iran [Passport].

(j)Letter of support for [a health clinic] dated [Marche] 2018.

(k)Letter by [a doctor].

(l)Letter from Australia Red Cross dated [2018].

Applicant’s evidence.

28.The applicant’s evidence was that he was born on [date of birth] in [County 1], Iran. He claims to be an Iranian citizen and to be a Muslim. In the applicant’s application for a protection visas he claims to speak Farsi, Turkish and English. He states that he has [a number of siblings]. One sister has passed away, but the rest of his siblings continue to live in Iran. The applicant attended secondary school in Ahwaz after which he completed a [qualification at a university]. The applicant then completed 18 month military service before commencing work as an [Occupation 1] for a [company].  

29.The applicant was married to [his wife] [in] 1973. The applicant has two sons, [Mr B] and [Mr C]. The applicant was divorced in 1995 and has not remarried.  

30.[Mr C] is a resident in Australia having arrived by boat. He suffers from [a medical condition] and has been cared for by his mother from time to time. The applicant visited Australia in 2007 and 2010 to care for his son as he claims that his son responds well to his presence. The applicant claims that his son has attempted suicide on two or three occasions between 2006 and 2010 and has been hospitalized on several occasions. While in Australia the applicant has been caring for his son and claims that he needs to stay in Australia to continue to care for his son.   

31.The applicant claims that he cannot return to Iran because he uncovered high level of corruption within [a specified] industry which has led to his life being threatened by the Revolutionary Guard (Sepah). The applicant claims that he fears he will be murdered in the event he returns to Iran.

32.The applicant claims that Sepah are in charge of all major infrastructure projects in Iran. He claims that Sepah pocket much of the money that is allocated for infrastructure programs and also accept large bribes for companies seeking to either build the infrastructure, drill for oil or mine for resources.[10]

[10] Applicants statutory declaration dated 11 August 2015;  [file number] 76

33.The applicant claims that in or about March 2007 he was employed by [Company 1] which provided [services] to [certain] companies. The applicant was employed as a contracts officer for [Company 4].[11] In December 2008 the applicant was transferred to [Company 2] to work [for Company 4].[12] As such the applicant claims that he was responsible for the management of the legal and contracting department of the company in the region of [Region 1] in [a certain province]. The applicant’s responsibilities included ensuring that the contractors were fully compliant with their contractual obligations. The applicant claims that he was working two weeks on and two weeks of on a fly in and fly out basis.

[11]  [File number deleted] f71

[12]  [File number deleted] f68

34.The applicant claims that when he arrived in [Region 1] in 2007, the person responsible for the contractual matters was [Mr A], a former high ranking officer of Sepah. The applicant took over from [Mr A] and he went to work as an officer services manager. The applicant claims that [Mr A] on a number of occasions spoke of his association and project work with Sepah. Although its claimed by the applicant that [Mr A] did not discuss specific information with him in relation to his project work, he states that it was well known to the applicant and his colleagues that he was able to arrange for Sepah to harm people in the event he was ‘crossed’ in any way.

35.The applicant states that after the [the establishment of] the contracts office in [Region 1], [Mr A] became angry as he no longer had any involvement in the contracts. Nevertheless the applicant claims that [Mr A] continued to introduce his associates and contractors to the applicant with the intention that they would be awarded contracts. The applicant claims that such conduct was ‘against the rules.’[13] The applicant says that despite [Mr A] being an official employee of the company as a professionally trained [professional], he resisted [Mr A]’s attempts to influence be involved in the granting of contracts.  

[13] Applicant’s statutory declaration dated 11 August 2015; [file number deleted] f75.

36.The applicant claims that he then investigated old contracts the company had entered into with various companies. The applicant says that in 2011 he discovered widespread corruption with [Mr A] having been involved in a number of contracts where his associates had established shelf companies and applied for tenders, at an inflated price, which they invariably would win. [Mr A] would then receive the funds for the winning tender and pay his associates, who set up the companies, a small amount for their trouble. The applicant did not provide any evidence in relation to [Mr A] involvement in the contracts as alleged, including the names of his alleged associates.

37.The applicant claims that as a result of his employment being on a two week on and two week off basis [Mr A] would pressure the applicant’s colleagues to award contracts that he had an interest in while the applicant was away. This caused tension between [Mr A] and the applicants colleagues as the applicant would only award contracts to ‘a meritorious bidder.’

38.The applicant claimed that many of the companies that had won contracts while registered did not have a listed address, no money no experience and no internal structure to be able to perform the contract. The applicant claims that he soon realized that the transactions were actually linked to many other leaders and high ranking Sepah officials. The applicant did not provide any evidence as to the high ranking Sepah officials and how they were linked to the transactions.

39.The applicant claims that in or about 2012 he had conversations with some of the contractors who admitted that they got to share some of the profits while the majority of the funds were diverted to [Mr A] and other Sepah officers. The applicant did not provide any evidence as to the identity of the contractors or any independent evidence of their involvement in the contracts. Nevertheless, the applicant claimed that a few days after he had the conversations with the contractors [Mr A] became aware that the applicant knew about the contracts. The applicant claims that [Mr A] initially offered him to share in the profits which the applicant rejected. As a result [Mr A] made threats against the applicant warning him that he had entered a ‘dangerous game’ which may lead to an ‘accident’ that would end his life. The applicant claims that [Mr A] said words to the effect that ‘accidents may happen to him and his family’ and that he ‘may disappear.’

40.The applicant claimed that [Mr A] also had an association with a local MP [Mr D] as well as Sepah. He said that together they formed a strong and influential circle making it impossible to make any complaint to the authorities, including the police.

41.The applicant claims that [Mr A], [Mr D] and Sepah were aware of the applicant knowledge about their dealings concerning the awarding of tender contracts. The applicant says that he was fearful they would locate him and make him ‘disappear.’ 

42.The applicant states that in or about April 2012 he returned home to Tehran to collect his belongings and then continued to move around Tehran and Karaj for a period of approximately 20 months. The applicant states that he would move between the homes of his relatives every 1-2 weeks to ensure that he was not found. [In] February 2014 the applicant came to Australia. 

43.The applicant claims her fears returning to Iran as he believes that his life will be in danger.

44.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 a person who has identified and exposed corruption in Iran.

(b)As a person with the imputed political opinion of being opposed to the Iranian regime due to the fact that the allegations of corruption are against [Mr A] , a former ranking offical of Sepah, leaders and high ranking Sepah officials and a local MP, [Mr D].  

(c)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

45.The DFAT country Information report Iran dated 7 June 2018 (‘the DFAT Report’) notes that:

Islamic Revolutionary Guards Corps (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.

Corruption

46.The DFAT report notes that Iran is a State Party to the UN Convention against Corruption, and Article Three of the Constitution commits the government to fighting all forms of corruption. The anti-corruption legal framework is diffuse and spread across a number of laws, including the Act on Public and Revolutionary Courts’ Rules of Procedures in Criminal Matters (1999) and the Aggravating the Punishment for Perpetrators of Bribery, Embezzlement and Fraud Act (1997). The Penal Code contains several provisions criminalising corruption, and there are numerous special anti-corruption by-laws, directives, enactments and guidelines. Anti-corruption provisions for public officials include active and passive bribery, trading in influence, money laundering, embezzlement, and abuse of functions. In grave cases of corruption, the death penalty may apply. Embezzlement in the private sector is a criminal offence. The Rouhani administration has identified tackling corruption as a key government priority. [14]

[14] The DFAT report @ p.10

47.Nevertheless the DFAT report notes that despite this strong legal framework and regular calls by authorities to tackle corruption, international observers report it remains endemic in all sectors of the Iranian economy and across society. In January 2017, Transparency International ranked Iran 131 out of 176 in its annual Corruption Perceptions Index. The GAN Business Anti-Corruption website reports that a powerful system of political patronage, nepotism, and cronyism pervades all sectors of the economy, irregular payments and bribes are often required to obtain services, permits, or public contracts, authorities do not effectively enforce anti-corruption laws in practice, and impunity is pervasive. Freedom House reports that restrictions on the media and civil society activists prevent them from ensuring transparency and accountability (see Media and Civil Society Activists/ Human Rights Defenders. In September 2016, six media outlets were blocked or officially reprimanded for violating the Cybercrimes Law for reporting on corruption in several Tehran property developments. [15]

[15] Ibid

48.The DFAT report refers to the fact that a number of high-level prosecutions of corruption cases have taken place in recent years. In March 2016, a billionaire businessman was sentenced to death for fraud and economic crimes after he was convicted of withholding billions of dollars in oil revenue channelled through his companies. In July 2017, a top presidential aide (and brother to the president) was arrested on charges related to financial crimes (although many observers believe the arrest was politically motivated). In October 2017, a court found former president Mahmoud Ahmadinejad guilty of illegally transferring USD1.3 billion from the National Iranian Oil Company to the Treasury. [16]

[16] Ibid

49.The DFAT report notes that international observers have recorded that popular resentment and frustration over high level corruption was a major contributor to the protests that occurred across the country in 2017-18. The collapse of a number of Iranian financial institutions in recent years, which has imperilled the savings of thousands of people and threatened the banking system, was of particular concern. Many collapsed institutions had undertaken questionable financial practices, including investing speculatively during a real estate bubble, lending to well-connected contacts, and charging high interest rates to desperate borrowers. Such practices were allegedly possible because the institutions’ owners were well-connected elites, many linked to religious foundations and the Islamic Revolutionary Guards Corps (IRGC). A series of statements from government officials, blaming the victims for not being more careful with their money, further fuelled popular anger.[17]

Conditions for Returnees

[17] ibid

50.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.

51.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.

52.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 

53.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.

54.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.[18]

[18] 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.)

55.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[19] 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.

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

56.If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[20] 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.

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

Accepted facts

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

(a)the applicant was born on [date of birth] in [County 1], Iran.

(b)the applicant is an Iranian citizen and of the Islamic faith.

(c)the applicant speaks Farsi, Turkish and English.

(d)the applicant has [a number of siblings], one sister having passed away. His remaining siblings continue to live in Iran.

(e)the applicant attended secondary school in Ahwaz.

(f)the applicant has a [qualification] at [a university].

(g)the applicant completed 18 months of military service.

(h)the applicant worked as an [Occupation 1].

(i)the applicant was married to [his wife] [in] 1973 and divorced in 1995.

(j)the applicant has two sons, [Mr B] and [Mr C]. 

(k)the applicant’s son, [Mr C], is a resident in Australia having arrived by boat and that he suffers from [a medical condition].

(l)the applicant visited Australia in 2007 and 2010 to care for his son, [Mr C].

(m)the applicant’s son, [Mr C], has attempted suicide on two or three occasions between 2006 and 2010 and has been hospitalized on several occasions.

(n)the applicant has been caring for his son while he has been in Australia.

(o)the applicant was employed by [Company 1] in or about March 2007 and was engaged as a contracts officer for [Company 4].[21]

(p)the applicant was transferred to [Company 2] in December 2008 and worked [in]  contract affairs in [Company 4].

[21] [File number] f71

Applicant’s claim as a refugee

58.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)As a member of a social group of being a person who has identified and exposed corruption in Iran.

(b)As a person with the imputed political opinion of being opposed to the Iranian regime due to the fact that the allegations of corruption are against [Mr A] , a former ranking offical of Sepah, leaders and high ranking Sepah officials and a local MP, [Mr D].  

(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.

59.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 being a member of a social group or as a result of his imputed political opinion by having identified and exposed, by confronted individuals with connections to the government and Sepah, about corruption in the awarding of contracts in [a certain] industry.

60.The applicant claims that while he was employed by [Company 1] and worked as a contracts officer for [Company 4] and [Company 2] he became aware of corruption in the awarding of contracts to company’s associated with the office services manager [Mr A], a former high ranking officer of Sepah. The county information[22] notes that despite a strong legal framework and regular calls by authorities to tackle corruption, corruption remains endemic in all sectors of the Iranian economy and across society. As such the Tribunal accepts the applicant’s evidence and finds that corruption existed in the awarding of contracts as claimed by the applicant.

[22] DFAT Report 7 June 2018 @ p.10

61.The applicant in his written claims states that he confronted those who he suspected of corruption in 2011. However, he did not provide any evidence to the tribunal of confronting anyone in 2011. Rather, his evidence was that in 2011 he investigated old contracts and discovered widespread corruption with [Mr A] having been involved in a number of contracts where his associates had established shelf companies and applied for tenders, at an inflated price. The applicant’s evidence was that confronted [Mr A] about the corruption in 2012 after having received information from those involved in the contracts. As such the Tribunal does not accept the applicants claim and finds that he did not confront those he suspected of corruption in 2011 as claimed.

62.The applicant’s evidence was that after he confronted [Mr A] about the corruption allegations, [Mr A] attempted to bribe him and then threatened him. Other than his own oral evidence, the applicant did not provide any third party or independent evidence of the alleged corruption. Nor did he provide any third party or independent evidence in relation to the threats he says he received. Despite the country information which states that Iran has a strong legal framework against corruption[23] the applicant made no complaint to the police or authorities or to any of his superior officers within his own company about the corruption allegations.

[23] Ibid

63.The applicant claims that [Mr A] was associated with a local MP, [Mr D], as well as Sepah. He said that together they formed a strong and influential circle making it impossible to make any complaint to the authorities, including the police. Nevertheless, the fact that the applicant did not make any complaint to the police or any other official, means that there is was no risk of any official investigation against [Mr A], [Mr D], or any Sepah official into the corruption as alleged by the applicant. In such circumstances there seems little reason for [Mr A] to have made a threat that would amount to serious harm.  

64.The applicant’s written claim states that out of fear of the threats he had received he left his place of work and moved around Iran for 20 months before travelling to Australia in February 2014. His evidence to the Tribunal was that he moved around Tehran and Karaj for a period of 20 months. The applicant, however, did not provide the Tribunal with any specific details as to where he stayed, with whom and for how long. In addition he did not provide any independent evidence of him having moved around Tehran and Karaj for a period of 20 months (i.e. statements from family and friends he stayed with). Nevertheless, the Tribunal accepts that the applicant from 2012 spent 20 months moving around Tehran and Karaj.

65.The applicant in his written claims states that he feared being eliminated as he had threatened the interests of senior figures in Sepah because of the corruption laws in Iran. He stated that they are concerned that if there is a change of Government in Iran they will implicated in the corruption and executed for their criminal activities. He claims to be a source of the evidence against them. The applicant did not identify any of the Sepah officials who he says may be implicated by his evidence. In addition, his evidence was that he had not removed or copied any of the contracts, accounts and other documents evidencing the corruption. Therefore, in circumstances where he does not have any documentary evidence to support his claims of corruption and he cannot identify the Sepah officials implicated any evidence the applicant has of corruption is likely to fail. Accordingly, the Tribunal does not accept the applicant’s claim that he is a source of evidence against them and finds that he has not threatened the interests of senior figures in Sepah as claimed.

66.While the country information suggests that there is likely to be corruption in the awarding of contracts, the Tribunal does not accept there is a real chance the applicant will be seriously harmed in the event he is returned to Iran by reason of his knowledge of such corruption. The applicant never made an official complaint against anyone for the alleged corruption. As such, there is no risk that [Mr A], [Mr D] or any other Sepah official will come to the attention of the authorities. In circumstances where there is widespread corruption in Iran with institutional owners being well connected to religious foundations and Sepah itself,[24] the likelihood [Mr A] and any member of Sepah being prosecuted and convicted of any criminal activity is low.  

[24] DFAT 9 June 2018 @ p10

67.Therefore, while the Tribunal accepts that upon the applicant confronting [Mr A] with the corruption allegations, he was threatened, it does not accept that, in all the circumstances, the threat by [Mr A] constituted persecution for the purposes of s.36(2)(a) of the Act. In fact the applicant’s evidence was that when he returned to Tehran and Karaj he did not receive any threats from [Mr A] or any other Sepah official. There was no evidence that [Mr A] or any other person had made enquiries of friends and family as to the applicant’s location. In circumstances where Sepah is a government agency with large resources, it is reasonable to assume that if the applicant’s life was in danger as claimed, they would have made all necessary enquires to find him. Instead it appears that no interest was taken in the applicant’s location and whereabouts. The fact that he was able to leave the country without difficulty or risk of being stopped at the airport upon his departure indicates that he was not a person of interest to members of Sepah. If he had been a real threat to an official of Sepah or member of parliament as claimed then one would have expected him to have been detained at the airport on his departure from the country. Rather the applicant was able to leave Iran without incident.

68.In any event after more than four years in Australia it is unlikely that the applicant remains a person of interest to [Mr A] or any member of Sepah. Given the passage of time and the fact that he has no documentary evidence to support his allegations of corruption, it is extremely unlikely that he represents a threat to [Mr A] or any member of Sepah as claimed.

69.Accordingly, the Tribunal finds that there is not a real chance the applicant will suffer serious harm in by reason of his claim that he had knowledge of corruption in the tender process at his work region of [Region 1].

Imputed political opinion as a failed asylum seeker

70.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.

71.However, the advice from DFAT[25] 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 applicant’s passport on the department file expired [in] 2014.[26] As such 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.

[25] DFAT advice dated 9 June 2018

[26] [File number deleted] f51

72.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. 

73.The Tribunal has not accepted the applicant evidence that he is being pursued by [Mr A] and members of Sepah. There was no evidence that he was being actively pursued by [Mr A] or any member of Sepah. He was able to depart Iran without difficulty or suspicion. Therefore, in the event that the applicant is stopped and interviewed, given that the Tribunal has found that he is not being pursued as claimed, it finds that there is no real chance he will suffer serious harm as a result of adverse political opinion or that he will be imputed with a political opinion of being opposed to the Iranian regime by having alleged persecution by the regime abroad.

74.Therefore, the Tribunal does not accept that there is a real chance the applicant will be persecuted on return to Iran, either now or in the reasonably foreseeable future by reason of his membership of a particular social group, his political opinion or any other Convention reason. 

75.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 Iran, there is a real chance that the applicant will suffer serious harm.

76.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

77.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 is a person who has identified and exposed corruption in Iran.

(b)he is a person with the imputed political opinion of being opposed to the Iranian regime due to the fact that the allegations of corruption are against [Mr A] , a former ranking official of Sepah, leaders and high ranking Sepah officials and a local MP, [Mr D].  

(c)he has an 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.

78.For the reason set out above the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in the event he returns to Iran. In circumstances where the applicant has not made any official complaint, and has no documentary evidence to support his claim there is little or no risk of [Mr A] or any Sepah official coming to the attention of the authorities. While the applicant claims he was threatened by [Mr A] he was not able to provide any evidence in which he was physically threated or abuse. The applicant was able to leave the country without difficulty or risk of being stopped at the airport upon his departure. If he had been a real threat to the officials of Sepah as claimed then one would have expected him to have been detained at the airport on his departure from the country.  Rather the applicant was able to leave Iran without incident.

79.Accordingly 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 his knowledge of corruption in the tender process at his work region of [Region 1].  

80.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

81.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm as required by s36(2)(aa).

Imputed political opinion as a failed asylum seeker

82.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 he will not be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime by having alleged that he was persecuted by the regime. 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 the Tribunal finds that as an individual[27] the applicant will not be prosecuted as an asylum seeker.

[27] DFAT advice dated 21 April 2016

83.The Tribunal has found that the applicant there is no real risk that the applicant will suffer significant harm by reason of any corruption the applicant discovered as claimed in the event he is returned to Iran. 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.

84.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 Iran, 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

85.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).

86.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).

87.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

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

Jason Pennell
Member