1516115 (Refugee)

1516115 (Refugee) [2018] AATA 1761 (18 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516115
COUNTRY OF REFERENCE:                  Iran
MEMBER:Rodger Shanahan
DATE:18 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 18 April 2018 at 12:54pm

CATCHWORDS
Refugee – Protection visa – Iran – Race – Faili Kurd – Social group – Irregular maritime arrival – Victim of assault and racial abuse – Accused of theft – Employment discrimination – Mistreated at University – Failed asylum seeker from a Western country – Membership of Basij – Credibility Issues
LEGISLATION
Migration Act 1958, ss 36, 45AA, 65, 499
Migration Regulations 1994, r 2.08F, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 16 July 2013 and the delegate refused to grant the visa on 11 November 2015.
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, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant appeared before the Tribunal on 7 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.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.
Protection Visa Application
The applicant claimed that his father was born in Iraq and was expelled to Iran along with other Kurds. Some of his relatives were missing and they believed were killed by Saddam. His mother was born in Ilam and was Faili Kurdish. His father gained Iranian citizenship before the applicant was born and has a national ID card. Because he was born in Iraq though, people consider his father to be Kurdish, not Iranian. Whenever he applies for a job they reject him or they fire him if they later find out about his background. The same thing happened to the applicant.
His father worked as a [professional] but was insulted by his colleagues and racially taunted for being a Faili Kurd. Because of this stress his father was forced to retire early and tried to find other [similar] work but nobody would hire him. He was unable to get or hold another job. The applicant claimed that he had also constantly faced racism and discrimination and poor treatment because he was seen as being Kurdish and not Iranian. He worked in the bazaar as a casual labourer and [another occupation] and had many problems. His boss was also Faili Kurdish and they faced the problems together.
Once in the bazaar they got into an argument with an Iranian Turkmen, the applicant was racially abused, dragged out of the [vehicle] and beaten up while racist taunting of him went on. The police turned up, arrested two of their assailants but also racially abused the applicant. The assailants were never charged and the applicant would have been jailed instead if the applicant’s uncle had not come and bailed them out. Their truck had been vandalised in the interim. He was physically assaulted and racially abused on a number of other occasions as well. His cousin was attacked and killed while working on a road for no other reason than he was Faili Kurdish.
He applied for jobs but was never able to get them once he showed that his father was born in Iraq. He was sure that this was because of racism. He found a job as a shop [Occupation 1] through his cousin who worked there as a labourer. After working there for a month he was accused of stealing. People had manipulated the books to make it look like he had stolen money – both he and his cousin were fired. At this point he decided to come to Australia before a lawsuit could be filed and he would end up in prison.
When his family tried to rent a house the owner would usually refuse to rent to them or would raise the rent so high that they couldn’t. He believed it was because they were Kurds. They had to live in bad areas as a result. At school the teachers would insult the Kurdish students and give them lower marks. They suggested that people like them didn’t belong at university. Teachers would hand out papers to everyone in the class except for the applicant. Following racist taunts at university he was beaten and stabbed in the arm with a knife. He went to hospital and the police attended but nothing was done. He didn’t attend university for a month and sent his father to collect his papers. Because of this he was unable to continue with his education.
In 2006 he and his sister were in a horrific vehicle accident in which his sister’s face was ripped off, while he suffered injuries to his leg. Public hospitals refused to treat his sister, which he believed was because they were Kurdish and his father was from Iraq. They had to take his sister to a private hospital as they bribed the head of the hospital to take her. He was treated at a public hospital; they asked for a bribe to do so but they couldn’t pay them as they had no money. Because of this they said he did not need an operation and he has pains and an inability to stand for long periods as a result. He had to see a psychologist after this and other family issues he was dealing with, was diagnosed with depression and prescribed medication which he didn’t take.
Additional Submissions
Additional submissions have been received with respect to this claim. One, dated 25 November 2014 (folio 94) included an additional claim of imputed anti-regime political opinion because of his western appearance, departing Iran and presence in Australia. Another dated 5 March 2018 (folio 43) included perceived nationality and/or connection with Iraq and as a failed asylum seeker from a western country.
AAT Hearing
The applicant was asked whether he knew everything that was in the submission dated 5 March and if he knew everything that was in it and that it was true and correct and that agreed it was. He was also asked about a request to bring along a support person but he advised that this person could no longer come.
He was also asked about some documents that the Tribunal had requested prior to the hearing (parents’ lease agreement and steps his father took to get Iranian citizenship). The adviser claimed she had yet to receive them but had seen them and they would be re-sent. His father’s steps would be advised orally rather than in writing. Regarding proof of his university attendance, he claimed he had a document that had been submitted to his lawyer.
She had said that she only had his high school transcripts not his university ones but they could provide evidence from the university that he had been studying so he could take a driving licence test. It was put to him that even if he didn’t complete the course he would still have a computer-generated academic transcript. The Tribunal wished to see proof that he had been at university, even if he had to withdraw from the courses, as this would be recorded by the university.
He claimed he didn’t finish a term and universities only put test results on the wall. It was put to him that the tribunal had seen academic transcripts from Iranian universities that were computer-generated and showed courses taken. He again said he had not completed any subjects and the Tribunal said that even if he withdrawn from courses the transcript would show what he had enrolled in and then withdrawn from. He claimed he didn’t know the document was so important otherwise he would ask his family to get this document, but he had already given some proof that he was at the university. The Tribunal said it was more interested in his transcript and he was asked to submit it. He said that he would.
The applicant claimed that if he returned to Iran he would be sent to prison for 15-16 years for things he hadn’t done. Asked what he would be sent there for, he claimed that false allegations had been made that he had stolen things in a shop where he had worked as [Occupation 1]. There had been recent protests in Iran and he would be harmed because he had sought asylum in a foreign country. Asked to explain the rationale for this claim, he stated that he would be considered a fugitive and a traitor to the country and he would be imprisoned directly from the airport. He had no other claims.
He also claimed that when his father moved from Iraq to Iran he had bought someone else’s document and it would be well-known that his documents were based on a forgery. His family (and him) would be arrested for forgery. His family had not been arrested for forgery at this point but if the government discovered they would be. He was asked how if he returned to Iran they would be arrested for forged documents, and he claimed that because he had never been to prison he had never been fingerprinted or given a DNA test. Once they did these they would know his father had forged his document once they conducted these tests. He had no other claims.
Regarding the fraud claim, he claimed he worked as [Occupation 1] in [a] shop. He was given that job through one of his friends. His employer though, was a racist person. After a while people there stole his password/PIN to the computer then they manipulated the data contained in the computer. Asked how they stole his PIN he said he didn’t know; perhaps they hacked it or saw it when he wrote it down. Only he and the owner knew the code. There were two others and a friend of his who worked in the storeroom. The owner came there for a few hours a day. He knew his friend as he was a distant relative/colleague – asked to clarify this he clarified him as being from the same town.
Asked again if they were related he said he came from a small place and all the people there were somehow related. Asked where he was from he said he was from Ilam. He was asked how big Ilam was and he said he didn’t know but agreed that it was small enough that all people knew each other. It was put to him that the 2011 census said that there were 213,000 people in Ilam which was rather sizeable a place for everyone to be related. He said he gave this as an example and said that families may know each other, such as his father knowing his neighbour but the applicant not knowing that person.
He then said that [amount] toman were taken from the account. He had been in the business for about two months. Asked where the money went to, he said the money was transferred from the business account to another one. Asked where this was, he claimed it was the Iranian account of a person living outside Iran. He didn’t remember the name of the person. Asked how these people knew the account details of the person’s account who received the money, he claimed he didn’t know but perhaps they had access to his chequebook
It was put to him that this wouldn’t show the details of the person’s account and he was asked how they had his chequebook if he was overseas. He claimed he didn’t know as he never went to the court. In Iran everything is forged. It was put to him that in order to transfer money electronically one needed to know the account details to transfer the money via computer. He said he had a list of all the customers and their account details as his boss would buy things from them. He claimed the people who stole this money knew the overseas person – he was their friend and they would know the account details.
The money was gone but the owner made a complaint against him to the police as he was the only one who had access to the PIN. This all occurred in 2013 a few months before coming to Australia. Asked what happened to the money after it was transferred, he claimed that the money was withdrawn and he thought the other workers did it. the shop’s account was emptied. Asked how they got the money out of someone else’s account given the account holder lived outside Iran and they had none of his ID, he claimed that two people had this person’s chequebook that had been signed and so they could draw the money.
Asked how he knew this to be the case given it would be unusual to leave signed, blank cheques with people while the person was overseas. He said he didn’t know exactly, but he knew the money had been taken by cheque withdrawal. Asked if he knew for certain if the employees had blank, signed cheques he said he wasn’t sure. Asked to answer yes or no whether they had signed, blank cheques, he said yes. He then said he was not definite when asked how he knew this to be a fact. He was asked again and said he was definite that they had but then said that the question was confusing and they had possibly forged cheques.
He was asked if he understood the question and said he did but if he was sure they had this chequebook he would have stayed for the trial. Asked what he based his claim regarding the blank, signed cheques on, he claimed he knew the money was withdrawn using a cheque. Asked how he knew this, he claimed his employer was accusing him of doing this. Asked why someone would leave blank cheques with the shop, he claimed that the cheque wasn’t lying around, the person who withdrew the money had a cheque from this person.
The employer made a complaint and the court gave him a summons. He spoke to a lawyer who told him that he would be convicted because of his race and because he had no documents. He had no documents to prove that he didn’t take the money. It was put to him that bank CCTV or the teller would be able to prove that someone else had withdrawn the money (such as one of the other employees). It should be easy to mount a defence for him so it was strange the lawyer would give him the type of advice he claimed to have received.
In Iran, he claimed that a woman in a chador who cashed a cheque would not be identified, and that in Iran cheques could be passed from person to person. Perhaps 30 people cpould pass the cheque from person to person and the cheque be cashed only by the 30^th person. He was asked to provide some country information to support this claim.
The police summons came a few days or a week before he left the country. Asked if the police came to his house and question him – he should have been able to prove that he wasn’t at the shop at the time the money was transferred using his computer. He claimed there was no CCTV in the shop and the police weren’t sophisticated enough to find out who hacked the computer. He was asked to provide some country information to support his claim that the Iranian police lacked computer analytical capabilities. The Tribunal was concerned that that the Tehran police may have the ability to find out when someone had logged onto the system given it was a simple procedure. He claimed that police wouldn’t use all these means to make such enquiries.
After he spoke to the lawyer, he also consulted with friends who told him that he would be convicted because he couldn’t prove his innocence. He then went into hiding for a period of tim but couldn’t remember the dates and left before he was blacklisted. He had told his lawyer previously that his mother suffered from anaemia, his father had a heart condition and he had depression and couldn’t remember things well.
Asked if he had any medication he claimed he hadn’t but yesterday he had booked an appointment to see a doctor about his depression. Asked if he had been on any medication for depression in the five years he had been in Australia he said that he hadn’t as he didn’t want to be dependent. He worried a lot about being sent back to Iran. He was asked if he had a medical diagnosis from the past five years saying he suffering from depression or whether he just considered himself depressed. He said it was an expression that he was worried.
He received a passport to leave Iran by bribing someone after he received this summons. Asked to be more specific, he claimed that in Iran there is a place in the bazaar where one can obtain forged documents. A person may have a link with someone in the passport department and he obtained it via this means. Asked if he mentioned this previously, he claimed that he hadn’t been asked previously. He was asked if he offered this information without being asked previously, he claimed that he didn’t recall. He had made some mistakes on his entry interview because he was scared but now he was telling the truth.
After he got his passport he bought a ticket to [another country]. He was asked why he did this rather than go to Armenia or Turkey by land over more porous borders to a much closer location rather than exit the country through the most secure exit point. He claimed that most people go to Turkey but it was risky because in Turkey Iranian Etilaat can arrest you and return you to Iran. Asked if he could provide country information to support his claim that Iranian agencies entered Turkey to return Iranians, and he claimed he could show youtube videos how Etilaat knifed an asylum seeker in Turkey.

It was put to him that there are a significant number of asylum seekers in Turkey and he was requested to provide a breakdown of the numbers of Iranian asylum seekers in Turkey and how many had been removed by Iranian Etilaat. He claimed Etilaat entered illegally and Turkey didn’t know about it. These actions were not recorded anywhere. Asked how he knew about it if nobody else did. He claimed that it would take him 2-3 days to cross the border into Turkey and in this time the injunction against him would have been issues. Asked why it took so long as he could get a bus or hire a taxi, he claimed that he would spend about 25 hours from Tehran to Tabriz and then wait a couple of days for a visa.
Asked why he didn’t go to Armenia given it was a 90 minute flight or five hour bus trip. Visa on arrival and the fact that more than 300,000 Iranians went there on holidays annually made it appear strange that he decided to come to Australia. The applicant claimed that he knew Australia would give asylum but in Armenia they would give you a visa for a month and then send you back to Iran or Turkey. Asked how he knew this, he claimed you could see this on the internet. It was put to him that this didn’t apply to people who claimed asylum.
He claimed he thought Australia was the safest place. It was put to him that if he felt his life was at risk it was reasonable to think that he would go to the first place where he would be safe and could apply for protection. This was not Australia, so the Tribunal was looking at his thought processes and what research he did into Armenia as an option and why he thought that he would be returned to Iran if he went to Armenia. He claimed that he wasn’t able to think and the people smuggler suggested Australia – he only came here because the people smuggler told him. If he knew Armenia was an option he would have gone there. Asked why he would have had to wait in Tabriz for a visa to go to Turkey, he claimed that he didn’t know but his friend told him as they had gone to Turkey and had to wait. Others told him they got it immediately.
Asked if Iranians needed visas to go to Turkey, he claimed he didn’t know. It was put to him that the Tribunal understood Iranians didn’t need visas to go to Turkey so it was strange that he claimed he had to wait in Tabriz for a visa which was a reason he ruled out going to Turkey. He claimed that by a visa he meant the stamping of passports and administrative issues. It was put to him that the Tribunal needed to test his credibility and believed that Iranians had visas issued on arrival in Turkey so was asked again why he thought he had to wait for days in Tabriz to receive a visa. He claimed that his friends had told him based on their experience on going on holidays to turkey and that borders may be closed so he could not take any risk.
Asked if he was a qualified [professional], he claimed he did [Subject 1] in high school. Asked if this was a high school subject, he claimed it was in a vocational high school and he had done this subject there. Asked if he went to university, he claimed he went there for a few months but didn’t pass any subjects. Asked what subjects he did, he claimed they were [Subject 1] ones but didn’t remember their names. He went to [a university]. Asked if this was a university that conferred degrees or a vocational school attached to the university, he claimed it was a university.
Asked if [Name] was the name of a town, he claimed [Name] was an organisation linked to [the] University. Asked in what way it was linked, he claimed that it was a branch or a part. Asked if he was studying for a degree, he claimed it was an associate degree in [Subject 1]. Asked if he had a record of this he claimed that he didn’t. Asked why he withdrew from the degree, he claimed that there was an altercation with a few people, he was scared he would be harmed so he stopped studying there. He never went anywhere else because he disliked studying. The fighting issue was resolved but this used to happen all the time because of his accent which sounded Arabic.
Asked why he was employed as [a professional] with just a high school qualification, he claimed that it could be considered a degree/qualification. It was put to him that a degree took three or four years of study. He claimed many people who had only done high school did [Subject 1] and he only worked in a shop.
It was put to him that he had provided copies of what he said were court documents/summonses and was asked if he had the originals. He said the copies were from the originals. It was put to him that there were concerns about the legitimacy of documents from Iran and it appeared that they just represented handwriting on photocopied pieces of paper so the Tribunal would have to determine how much weight it gave them.
He was asked about being imprisoned for applying for protection in Australia and why he thought this would occur. He claimed that he had heard this from a number of people and his [uncle] had been in [Country 1] and unsuccessfully sought asylum and was imprisoned for six months until his family paid a bribe. He would have been in prison for 10 years otherwise. Asked if this was publicly available information, he claimed it wasn’t as the government didn’t publish it but he had heard this from several people. He agreed that the Tribunal had to rely on his oral evidence regarding the claim about his uncle.
Asked why he thought he would be imprisoned given his uncle may have had a criminal background for example, and he claimed that his uncle had done nothing wrong and the Etilaat interrogated him. It was put to him that asylum claims are confidential and he was asked how the authorities knew about his claim in [Country 1], and he claimed his uncle went to [Country 1] illegally from [another country] and was deported from [Country 1] to Iran. Asked why there would be interest in the applicant, he claimed that he had heard in the Constitution that people who claimed asylum were committing a crime. He said he had heard this but didn’t know if it was true.
It was put to him that if he simply said he had heard things without doing any research himself, it may cause the tribunal to question his credibility relating to claims he made. Asked if he understood this, he claimed that he apologised and he had said why he was afraid to return. Asked how anyone would know that he had applied for asylum in Australia given it was confidential, he claimed that he believed that one in 20 Iranian people in Australia were Etilaat agents so the Iranian government would know.
Country information was put to him that unless people had a political profile in Iran the authorities there were not interested in failed asylum seekers. It was a publicly discussed issue in Australia by the Iranian foreign minister Zarif who said that there people were free to return. Iranians who had claimed asylum had returned to Iran several times on Iranian travel documents without incident. He claimed he had heard of the problems but now he accepted what the Tribunal it was no longer a concern of his and this issue was no longer a claim. He was convinced to some degree.
Regarding the claim relating to forgery, he claimed that on return he would be fingerprinted and given DNA tests and they would discover his father moved from Iraq to Iran without documents and that he bought documents from someone. Asked why his fingerprints/DNA would be taken on return to Iran, he claimed that he wasn’t sure about DNA but was sure about fingerprints. He hadn’t been fingerprinted or interrogated before but they would find out his father’s story because of this. He was asked again why his fingerprint/DNA would be taken at Imam Khomeini airport, he claimed he would be interrogated because he was Kurdish. They would ask where he has been for five years and his father’s story would come out during his interrogation.
He had been very lucky that their past had not been discovered before, particularly about the forged documents. Asked if he had mentioned this claim previously, he claimed that he didn’t know the issue was very important and it was only after he spoke to his agent that he thought to bring this up. Asked if his father worked in Iran, he said he was now retired but was [an occupation]. [Details deleted]. Asked if he was a [an occupation], he claimed that he was a [in] both government and private [settings]. Asked where he gained his [qualifications], he claimed his father used the forged documents to get study and everything else. His father went to school in Iran but the applicant couldn’t remember when he had arrived; he thought it may have been around the time his father was [age].
He went to university and had a degree in [a subject]. His father’s parents brought his father to Iran. Asked why his father as [age] year-old had to buy forged documents and how he was able to enter schools who would have checked his documents. He claimed there was a [child] in Tehran selling drugs. It was put to him that the Tribunal was asking why [an age] year old had to get forged documents when his parents were there and presumably would have done it. He claimed his grandfather went to [a different country] and didn’t know if he needed to explain it all. It was put to him that he could put it in writing and he had already been asked prior to the hearing to provide a description of the actions taken by his father to gain Iranian citizenship (including approximate dates) and yet nothing was received.
The issue of forged documentation had never been raised before, he had claimed he would be fingerprinted and DNA tested on arrival and now said he probably wouldn’t. The Tribunal had concerns that perhaps his father was born in Iraq, came to Iran and was able to get legitimate Iranian citizenship by proving the family’s lineage. He denied this and said that they didn’t have citizenship and only half of those emigrating to Iraq had citizenship. It was put to him that his father had got his education in Iran and was employed in government [settings], the applicant had a passport so it appeared that they were Iranian citizens.
It was put to him that he hadn’t raised the issue today but he had previously spoken about being persecuted as a Kurd. Yet with his background and country information that supported this, it appeared that Kurdish Iranian citizens accessed government services in the same way as non-Kurds. He had claimed he was deliberately given lower marks at university and was discriminated at work. It was put to him that perhaps he wasn’t good academically and so found it hard to get a job in a tight labour market without any university qualifications.
He was asked if he had any other issues he wished to raise. He said he had no questions but had some comments. He deferred to his adviser and a short natural justice break was given (the adviser was told she would be given time for a post-hearing submission). After the break, the applicant said that if it was found that his father had worked on forged documents the applicant’s punishment would be more serious. He was asked and said he had nothing more to say. The adviser was given a week to provide additional information. The applicant claimed the Tribunal had not believed anything he had said. It was put to him that the Tribunal had not made its mind up about anything but that procedural fairness/natural justice required concerns regarding claims had to be put to him directly. He claimed that he apologised and he got frustrated at times.
Section 424A letter
Post-hearing a s 424A letter was sent to the applicant stating that he had only provided a copy of a document stating that he had sat an entrance test for an associate diploma, and was asked for evidence that he had passed the test and was offered a place at the university. He claimed that a document that was provided earlier (folio 64) was evidence of admission that he had used to gain his driver’s licence. He was also asked why the test stated that he sat under the quota as an ‘Active Basij’ and that he may have been a Basiji which he had never mentioned and could call into question his truthfulness. He claimed that he was a member of the Basij but only briefly in order to improve his chances of getting into university but that he cancelled his membership shortly after.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived as an irregular maritime arrival on 28 March 2013 and claimed that he is a Faili Kurd in Iran whose family had fled from Iraq. He was interviewed during his departmental interview in the Persian language and has claimed that he is Iranian. At his hearing he claimed that his father obtained Iranian nationality documents fraudulently and that this would be found out if he returned to Iran. I do not accept this to be the case and instead find that he is and always has been a genuine Iranian citizen.
The applicant is [age] year old single man. The applicant fears that he would be sent to prison if he returned to Iran because he had bene falsely accused of theft from the shop he worked in, he would be harmed because he had sought asylum in a foreign country and would be considered a traitor. He also claimed that the Iranian authorities would find out that his father obtained Iranian citizenship fraudulently so he. Too would be considered to have obtained it fraudulently.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the applicant’s claim that he had been diagnosed with depression in Iran and prescribed medication, and the adviser’s letter in which she stated the applicant had been referred by her firm for a mental health assessment (folio 41). I note the letter was dated 5 March 2018 and no assessment had been received by the Tribunal at the time the decision was written. I do not believe that mental health played any part in the inconsistencies exhibited by the applicant.
Rather, he was lucid and spoke confidently. The problem was not one of mental health issues – it was rather one of credibility. I am satisfied that the applicant has deliberately falsified claims in full knowledge of what he was doing at the time he did it. I also do not accept (folio 50) that the hearing was wrapped up unexpectedly due to a late start time. All issues had been addressed; the applicant was asked and had no more he wished to say and he was given time post-hearing to provide a further submission. As for his concerns about the way the Tribunal was run, it was explained to him that his claims would not be accepted without question and the reasons why that was the case.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he lied to Commonwealth officials and fabricated his claims in order to be granted a protection visa.
Citizenship
I accept that the applicant is of Kurdish ethnicity and that his father was born in Iraq, as per his birth certificate (folio 80). I do not accept that the applicant’s father was expelled from Iraq and then obtained forged documents in Iran that allowed him to gain Iranian citizenship. This claim was never made until the time of the hearing. And despite being asked prior to the hearing (on 15 February 2018) to provide a description of the actions taken by his father to obtain Iranian citizenship, including approximate dates by 1 March 2018, none was forthcoming prior to the hearing as he claimed that he was waiting for information from his family.
This should have been a relatively straightforward piece of information to provide and I am not satisfied that such a delay was justified. Even when he did provide information it was vague, saying that he thought his father was [age] when his family came to Iran (which would have made it around 1970). Given country information[1] indicates that expulsions of Faili Kurds from Iraq began around 1979 I am satisfied that the family move was voluntary.
[1] DFAT Thematic report –Faili Kurds in Iraq and Iran, 3 December 2014, p 5.
Given that the applicant’s paternal (folio 80) and maternal (folio 78) grandfathers were both born in Badreh, Iran and that citizenship passes down the paternal line, I am satisfied that the applicant’s father (and the applicant) have always been Iranian citizens. I do not accept that the applicant’s father had to buy documents from someone in Iran once he moved from Iraq. Not only was he [age] year-old child when he moved, given his paternal lineage there would have been no reason that he couldn’t apply for Iranian citizenship legitimately if he did not already have it.
Given his father is a legitimate Iranian citizen, it follows that the Iranian authorities would not find out through fingerprinting, DNA analysis or interrogation that the applicant’s citizenship was based on false documents.
Persecution and Discrimination due to Kurdish identity
I do not accept that the applicant was ever subject to persecutory or discriminatory behaviour, that he was assaulted at work, at school or at university, had his [vehicle] vandalised or lost out on jobs or rental properties or had lower marks given to him at school because of racism. His claims rely on his oral testimony, which I have found lacks credibility. Country information[2] indicates that most Iranian Kurds do not come to the attention of the authorities or are subject to only low levels of adverse attention by the state. I am satisfied that the applicant falls into the first of these categories, given his membership of the Basij which he failed to disclose during his protection claim (addressed below).
[2] DFAT Country Information report – Iran, 21 April 2016, p 10.
I do not accept that he ever attended [a] [University]. He was asked to provide computer-generated academic transcripts from the university that would show that he attended but withdrew from the course. The member has seen such transcripts from Iranian universities in the past so they are obtainable. And in the event of course withdrawal it is reasonable to believe that this would be reflected in the transcript. He was evasive when asked for it, initially claiming that universities only posted test results on the wall, then that there would be no record as he had not completed any subject but that he would provide it.
When he did provide evidence post-hearing it was simply proof that he had attended an associate diploma university entrance test, not that he had passed it or attended university. He never provided evidence that he passed the test, or any academic transcript that would indicate that he enrolled in any classes. He has provided what he claims is a letter stating that he is enrolled in an associate [diploma] to be used solely for the purposes of the Ilam traffic department.
He has not provided the original of the letter, and the photocopy could easily have been produced on any home computer. Nor has he enunciated why he required a separate letter from the university for the sole use of the traffic department to issue him a drivers licence. I place greater weight on his general lack of credibility and inability to produce test results, letters of acceptance or academic transcripts in determining that he never attended university. Because he never attended university, it follows that he was never racially taunted, attacked and stabbed while attending classes there. Given his membership of the Basij I also do not accept that the applicant suffered poor treatment because he was seen as Kurdish and not Iranian.

Given the available country information regarding attitude to Kurds, the applicant’s voluntary membership of the active Basij and his general lack of truthfulness, I am also not satisfied that the applicant was asked for a bribe to be admitted to a public hospital, or was refused an operation because they could not pay. Not only do I find the claim implausible, it lacks consistency that they would not have sufficient money to pay a bribe for a car crash victim to be admitted to hospital yet have enough money to pay for tuition fees to the private [University].[3]
Accusation of theft
[3][Source deleted].
I do not accept that the applicant was ever accused of theft in the store in which he worked. The account was both vague and implausible. He believed that his log on details were copied or stolen by fellow workers yet did not know how this was done. The money was then transferred to an expatriate Iranian’s account and was then subsequently withdrawn in total from there. He claimed that it was subsequently taken by cheque withdrawal, yet couldn’t say why someone would leave signed blank cheques with someone while they were overseas. When pressed on the issue, he was contradictory and vague as to whether cheques were used, whether they were signed blank cheques, or perhaps forged cheques.
The subsequent events were also implausible. Firstly the applicant’s lawyer allegedly told him that he would be convicted simply because he had no documents and that he was Kurdish. Yet he was also a member of the active Basij, which the lawyer should have been aware of. No attempt at mounting a defence using the applicant’s movements at the time the money was transferred to show that he wasn’t there and couldn’t have done it, or the bank’s CCTV to examine who had cashed the cheques, was made.
I do not accept that a woman in a chador cashed the cheque as he did not say how he arrived at this conclusion. Nor do I accept that cheques could be passed on to 30 people before being cashed. He was asked to provide country information to support such a claim yet he never did. No police investigation was ever conducted, nor was the applicant ever questioned by the police. I do not accept that Iranian police lacked computer forensic capabilities; given country information indicates that a dedicated cyber-crime unit (that included on-line fraud) had been established since 2011.[4]
[4] accessed 3 April 2018
The applicant’s actions are also not indicative of someone looking to flee quickly. Once he had received his passport, rather than go to Turkey or Armenia by land or air, he decided to come to Australia through the most secure exit point in Iran (Imam Khomeini airport). Country information indicates that it is possible to flee from arrest warrants or charges but that this is usually accomplished overland rather than through main airports.[5]
[5] DFAT Country Information report – Iran, 21 April 2016, p 28.
I have taken into account the documents he has provided (folios 74-6) that he claims are an arrest warrant, summons and sentencing letter but lend them little weight. They are all photocopies that could easily have been produced on a home computer.
I do not accept that he failed to go to Turkey because Etilaat entered Turkey and kidnapped Iranians before bring them back to Iran. He offered no country information to support this claim nor is the Tribunal aware of any such instances. I also do not accept that he would have to wait in Tabriz to get a visa for Turkey given country information indicates that Iranian citizens can enter Turkey visa-free.[6] He also claimed that Armenia would send people back after a month yet provided no evidence to support this claim. Country information indicates that people can claim asylum in Armenia and are not returned while their claim is processed.[7]
Membership of the Basij
[6] accessed 4 April 2018
[7] DFAT Iran, p 29
I am satisfied that the applicant was a member of the active Basij, as evidenced by his response to the s 424A letter. I am unable to say for how long he was a member. He claims that it was only for a very short period before his membership was cancelled, and that he only did it to improve his chances of getting into university.
I have already pointed out several occasions in which the applicant displayed a lack of credibility. And he has failed to provide any translated, documentary evidence that could indicate the length of his service. Country information indicates that there are several benefits that accrue to Basijis, and it is plausible that he joined the organisation to access these benefits. Yet he never mentioned that he had been a member of the Basij, including in question 57 (folio 39) of the protection visa application when it would have been appropriate to do so. There is some form of ID card in his file (folio 72/3) but it is untranslated and no reference has been made to it, so it is impossible to give weight to as a consequence.
By joining the Basij however, it indicates that the applicant is supportive of the Islamic Republic. This is inconsistent with the applicant’s claims regarding the persecution and discrimination he has allegedly suffered from those within the Islamic Republic who he claims have consistently treated him as an outsider. It is paradoxical then, that he would join an organisation synonymous with preservation of the system that he claims to despise. It is also inconsistent that the applicant would be afraid of returning to Iran for fear of his father’s fraudulent use of Iranian identity documents being discovered, but not be afraid of joining the Basij.
I note the applicant’s adviser has quoted country information saying that the vetting process is informal and relatively quick, yet the same country information also indicates that (in the case she cited) ‘it is likely that some degree of background checking on them and their families had already been collected..’ and that officially each recruit is ideologically vetted through a formal background check.[8]
Other Issues
[8] Afshon Ostovar ‘Iran’s Basij: Membership in a Militant Islamist Organisation’, Middle East Journal, vol 67, no 3, Summer 2013, p 351.
I do not accept that there is a real chance the applicant would suffer serious harm for perceived connection with Iraq. This was never raised by the applicant during the hearing and it is hard to see how the applicant could join the Basij were this the case. For the same reason I do not accept that the applicant would be imputed with anti-regime political opinion because of his western appearance. No claim was made during the hearing about this, nor was any country information provided to support the claim.
Failed Asylum Seeker
Regarding being persecuted as a failed asylum seeker or for leaving Iran or being in Australia, I am not satisfied that this would occur. Nor do I accept that his membership of the Basij would add to a perceived anti-regime political opinion. To begin with, the applicant self-admittedly belonged to the Basij for a very short period of time and for the sole purpose of advancing his own self-interested agenda. As a consequence his brief membership would not be sufficient to raise his profile to a level that he would be considered anti-regime for having been overseas for an extended period.
I am also not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.’[9] and that Iranian officials do not attempt to prosecute a voluntary returnee.[10] This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’.[11]
[9] DFAT – Iran, p 29
[10] Ibid, p 28
[11] DFAT Country Information Report, Iran, 20 November 2013, p 25
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant obtained his citizenship fraudulently through his father, was ever persecuted for being Kurdish, was accused of fraud in his workplace, charged and sentenced in absentia, would be considered to be anti-regime for having a Western appearance, having been a Basiji and leaving Iran or living in Australia, or prosecuted as a voluntary returnee or for seeking asylum I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rodger Shanahan
Member

ATTACHMENT A – RELEVANT LAW
1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.
2. 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).
3. 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’).
4. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.

[2018] AATA 1761

18 April 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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Natural Justice

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