1600364 (Refugee)

[2019] AATA 667

1600364 (Refugee) [2019] AATA 667 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600364

COUNTRY OF REFERENCE:                  Iran

MEMBER:Jason Pennell

DATE:22 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 22 March 2019 at 10.48am

CATCHWORDS

REFUGEE – Protection visa – Iran – fear of persecution – political opinion – participation in student protests – challenged authority – atheist – rejection of Muslim faith – ethnicity – azeri – alcohol consumption – Gozinesh profile – delay in protection application – real chance the applicant will be persecuted – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5J(1), 36, 65, 91R, 91S, 499

CASES
Chan v MIEA (1989) 169 CLR 379
Juan (1996) 40 ALD 445
Kavan v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Y [1998] FCA 515
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Saliba v MIMA (1998) 89 FCR 38
Subramanium v MIMA (1998) VG310
Zhang v RRT & Anor [1997] FCA 423

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 [in] December 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 [in] January 2014. 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.

3. The applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [a named person] and [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages

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

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

2. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

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

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

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

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

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

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

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

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

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

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

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

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]

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

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

Mandatory considerations

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

The applicant’s migration history

1. According to the application for a protection visa and the delegates decision dated [December] 2015[6] (‘the delegate’s decision’).  The applicant first arrived in Australia [in] May 2008 as the holder of a Postgraduate Research Sector (Subclass 574) visa. He was granted a further subclass 574 visa onshore.

   [6]    AAT File 1600364 @ f1

2. The applicant returned to Iran from [March] 2010 to [May] 2010. He also travelled to [Country 1] for approximately 7 days in early 2011.

3. The applicants last subclass visa ceased [in] November 2013 upon which he became unlawful. [In] December 2013 the applicant submitted an application for a [Temporary] visa which was deemed invalid by the department as the applicant had become unlawful at the time of his application.

4. [In] December 2013, the applicant was granted a Bridging visa E (subclass 050) visa. The applicant made an attempt to make a request for ministerial intervention under s.351 of the Act however, the minister’s powers to intervene was unenlivened.

5. [In] December 2013 the applicant was granted a further Bridging visa and was directed to depart Australia by [January] 2014. [In early] January 2014 the applicant applied for a protection visa (subclass 866) visa.

Country of Reference

1. The applicant claims to have been born in Iran on [date of birth] and a citizen of Iran. The departmental [file] contains a copy of the applicant’s Iranian passport[7] which confirms his date of birth. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.

   [7]    [File number] @ f.44

2. Accordingly, in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Islamic Republic of Iran and  his protection claims will be assessed against Iran as the country of reference and 'receiving country' respectively.

3. 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).

The applicant’s protection claims

1. The applicant’s claims are detailed in a statement attached to his application for a protection visa [dated]  January 2014[8] and are summarised in the delegate’s decision.as follows:[9]

   [8] [File number] @ f.1-21

   [9] AAT File 1600364 @ f10

   (a)The applicant participated in student protests in Iran.

   (b)He was detained immediately after a protest at [University 1] [in] July 1999. He was held for a few days. He was mistreated and threatened with execution. He was released without further incident.

   (c)During his studies he was outspoken in his views and unafraid of challenging authority. He clashed with the university officials who were also Basij members.

   (d)In one incident at [University 1] he slammed a door in the face of the Basij. As a consequence he was summoned from class and interrogated on about three occasions. On the last occasion he was assaulted.

   (e)In 2008 in Terhan he witnessed a group of Basij chastising three women for not being modestly attired. The applicant vocally supported the women. The Basij hit the applicant and detained him. They took him to a police station but a sympathetic officer released him the next day.

   (f)Because of hs views and outspokenness he was unable to secure employment commensurate with his skills. He left Iran partly to improve his employment prospects. He will be barred from many jobs by the Gozinesh ideological screening process.

   (g)He returned to Iran in 2010. On his arrival he was questioned at the airport by security forces. They asked him to log into his email account, and they briefly examined its contents. He left the airport without incident. Two days later he changed his email account password.

   (h)In the dedication of his thesis at [University 2] he made comments critical of the Iran-Iraq war and made an apparent facetious [dedication]. While visiting Iran the applicant discovered the dean of the [faculty] had [removed] the dedication page at some time after the applicant’s graduation. The dean was also head of the Basij at the university.

   (i)He made continuing posts to social media following his return. He has corresponded with one student at [University 3] whose father is a conservative member of the Majlis in Iran. He also corresponded with a former classmate who is himself a member of the Basij.

   (j)He has clashed with the [Iranian student groups] in Australia and [Country 1].

   (k)In January 2011 the applicant attended a [conference] [at Location 1] in [Australian State 1]. While there he argued about political issues with [fellow Iranians] who are the [family members] of [an official] of the Majlis, [name deleted]. [This person]’s brother is [an important official].

   (l)Any of these individuals, or others, could have reported his political opinions to the authorities.

   (m)The applicant claims that he drinks alcohol and has made at least one post to social media demonstrating this. Alcohol consumption is punishable by 80 lashes in the first two instances and execution on the third instance.

   (n)The applicant fears he will be detained on arrival if he returns to Iran. He may be interrogated, tortured and executed. He fears that he will be harmed for his anti -government political opinions and his apostasy from Islam to atheism.

   (o)The applicant claims that he is an ethnic Azeri. He claims that the chances of him being persecuted are increased due to the fact that he is a member of an ethnic minority. Azeris and other ethnic minorities are disadvantaged in the judicial system and receive harsher punishments. They also face discrimination in employment.

   (p)It is submitted that even if he is not detained on arrival he will inevitably come to the adverse attention of the authorities because of his outspokenness particularly in relation to his anti -government political opinions and his apostasy from Islam to atheism.

   (q)It was also submitted the applicant would be unable to find employment.

2. In support of his application the applicant submitted 133 documents. The individual document include:

   ·19 [social media] posts made by the applicant that express his atheist belief.

   ·25 [social media] posts by the applicant that express his political opinion against the Iranian government or individuals within it.

   ·8 email exchanges or online instant messaging service conversations between the applicant and other correspondents.

   ·23 examples of adverse treatment of Iranians by authorities for their online activities which include multiple references to the same cases.

   ·30 stories illustrative of human right violations in Iran, but not directly relevant to the applicant’s claim.

   ·22 sources including newspaper reports on attacks on atheists in Bangladesh and discussions of atheism generally. These documents do not appear to be directly relevant to the applicant’s claims.

   ·6 Persian–text documents which were provided without translation.

3. For the purposes of the hearing, in addition to his oral evidence the applicant relied upon his statutory declaration dated 27 June 2018, Submission dated 27 June 2018, letter from [Mr A]of [Organisation 1][dated] June 2018, medical report by [a  named person] [dated]  August 2016, medical report by [a named Doctor] [dated] June 2018, report by [a second named doctor] [certified] April 2017, letter form [Mr B] of [Organisation 2] of Australia [dated]  June 2018, report from [Hospital 1] [dated] October 2009, letter for [a named person] of [Hospital 1] dated [March] 2010, letter for [a second named person] of [Hospital 1] dated [January] 2012.  

The Applicant’s evidence.

1. The applicant’s evidence was that he was born in Iran on [date of birth] and a citizen of Iran. He claims to be an ethnic Azeri and a practicing Atheist.

2. The applicant states that he was born into a strict Shia Muslim family in which he and his family would attend the Mosque daily and fast for 30 days per year.  The applicant’s father worked as [an occupation] but passed away in or about 2002. His mother continues to reside in Iran.  His evidence was that his family were heavily involved in the Iran/Iraq war with his parents attending rallies and distributing ‘night letters.’ The applicant stated that he had [a number of] brothers all of whom volunteered for the Iranian army during the war. When the applicant was around [number] years of age (about [year]), one of his brothers was killed in the war with his remaining brothers continuing to reside in Iran, all of whom were injured both mentally and physically during the war. The applicant also has one [sister] who also lives in Iran.

3. The applicant attended [two named high schools] in Tabriz.  In or about [year] the applicant attended [University 1] where he [studied]. The applicant graduated with a [PHD]. The applicant claims that as part of his studies he was introduced to [some new theories]. He states that as a result of this study he developed some doubts about his faith.[10]  

   [10]   Statutory Declaration dated 27 June 2018 @ [9]

4. The applicant stated that in or about 1998 an incident occurred at [University 3] where he slammed a door in front of a Basij member. The applicant claims that there were several Basij brothers[11] at the University who are now professors in key positions at the [faculty]. [Details deleted]. The applicant claims that he was later summoned for the class and accused of slamming the ‘door of nazam’, (i.e. slamming the door on the Islamic Republic). The applicant says that he was interrogated in the Basij office on three occasions about the incident. On the third occasion he was physically abused. On this occasion and other similar occasions the applicant claims that he faced expulsion from the university.  The applicant claims that each incident caused him to drift further away for the regime. 

   [11]   The Muslim Brotherhood (also called Muslim Brethren or The Society of the Muslim Brothers) is an Islamic organization with a political approach to Islam. It was founded in Egypt in 1928 by cleric Hassan al-Banna after the collapse of the Ottoman Empire (see: Jewish Virtual library ‘Terrorism: Muslim Brotherhood’ type="1">

5. The applicant claims that in or about 1999 he attended a protest at [University 1] at which students were protesting against the regime’s suppression of students. The applicant claims that at the protest some students were killed and disappeared. The delegate’s decision notes that one student was killed during the protests in 1999. However, the applicant’s evidence is that more were killed.  In his statutory declaration the applicant refers to [a number of] people who he claims were [harmed at] [University 2].[12] In addition he claims that in clashes between the students and the Basij, riot guards and police shots were fired directly into the student group killing and wounding many of the students. While running away from the authorities the applicant was arrested and taken to what the applicant later believed to be the Minister of Information Centre.[13]

   [12]  Statutory Declaration dated 27 June 2018 @ [22]

   [13]  OpCit @[24]

6. The applicant claims that he was blindfolded and placed in a crowded room with no facilities and poor lighting for a period of around 3 to 4 days.  While he was being detained the applicant was told that he was to be decapitated. He was interrogated about his motivation for attending the protest and objecting to the government, if he had any external foreign links and his belief in God and the Islamic Republic.  The applicant claims that as a result of the interrogation he was forced to admit that he was a supporter of the Islamic Republic and that it has been a mistake to attend the rally.[14] The applicant believes that he was released because his brother as killed in the war. As such as a brother of a martyr he was looked favorably upon and released.[15] 

   [14]  Op Cit @ [28]

   [15]  Op Cit @ [29]

7. The applicant claims that in [year], at the age of [years], he commenced studying for his doctorate at [University 2]. At this time, in addition to his studies, he commenced reading philosophy and humanities in his own time.[16] As a result the applicant commenced to acting against issues that he thought to be unjust. He became active advancing the rights of students at the university initially thought smaller [issues] to more broader political issues. In particular, he claims to have acted against the segregation between men and women on buses by sitting on the women’s side of the bus when it was not full.[17] The applicant evidence was that his Doctorate took longer than the usual 3 years due to the fact that he clashed with the system. As a result of his outspoken behaviour the applicant was forced to change supervisor for his doctorate thesis.    

   [16]   Op Cit @ [16], [19]

   [17]  Op Cit @ [17]

8. In or about 2005, at the age of [age], the applicant claims that after seeing so much injustice he stopped praying five times per day. He says that he had moved away from Islam and detached himself from its beliefs and ideologies over a period of time. As a result, the applicant does not consider himself a practicing Shia Muslim anymore and generally associates himself to being atheistic.[18]

Return to Iran 2010

[18]  Op Cit @ [14]

1. In or about December 2009 the applicant claims that he started to feel tingling in his hands and legs and a pain in his lower neck which later developed into a muscle spasm. The applicant claim that he was diagnosed with a psychosomatic symptoms caused by stress. As a result he took a period of stress leave from his studies and returned to Iran.  The applicant claims that he returned to Iran due to the fact that he was homesick and ‘disorientated.’[19] 

   [19]  Op Cit @ [56]

2. The applicant claims that when he arrived in Tehran, after passing through immigration and having his passport checked he was approached by some officials and taken to a room. The applicant claims that he was asked questions about his identity, where he had come from, why he had returned, if he had any relationship with overseas students, if he has any activities for or against the government and if he was willing to co-operate with them.[20]  The applicant was asked to log onto his email account upon which the officials inspected his email correspondence. The applicant claims that they asked specifically about him changing his supervisor, upon which the applicant assumed that he had been under surveillance in Australia.  

   [20]  Op Cit @ [58]

3. The applicant states that he changed his password two days after it being accessed by the officers at the airport. He submitted that his delay in changing his computer password was as a result of him having no internet connection at the time of his arrival, he was jetlagged and unwell, he had to travel for 12 hours by coach from Tehran to Tabriz, there is no internet connection at his family home and being Persian New Year access to internet connection was limited.[21] 

   [21]  Op Cit @ [60]

4. While in Iran the applicant had to clear his enrolment and obtain his qualification from [University 2]. The applicant claims that his clearance and thesis had to be signed by the applicant’s assessment panel member [named panel member] and head of the school (also a Basji member) [named head of school]. The applicant claims that they refused to clear his thesis because they did not approve of his acknowledgement of his previous supervisor Professor [name],[22] who was detested by his supervisory team and because of the applicant’s previous political clashes with the [school].  The applicant claims that the dedication page of his thesis was torn out by [the head of school]. He claims that as a result of his dedication page being torn out of his thesis his support for Professor [name] become known to the authorities and generally known to the public. Nevertheless, despite being told that he would not graduate, close to the time of his departure from Iran his thesis was signed off.[23]

   [22]   Op Cit @ [41]

   [23]   Op Cit @ [64]

5. The applicant was able to leave Iran without incident.

Surveillance by other Iranian Students in Australia

1. The applicant claims that he has attended rallies at the time of the ‘stolen election’ in 2009. He claims that he attended rallies in [Australian City 1] and protest that occurred in [two locations]. He claims that he also attended a vigil for those Iranians who died.  At this time he activated his [social media account] and started posting about rallies in Iran. He said that he tried to go to rallies and voice his opinion about the government being illegitimate.[24] He claims that on [social media] he would ventilate about politics and would often get into disagreements with friends and individuals, including his girlfriend at that time. As a result his ex-girlfriend and a number of friends have blocked him on [social media] because of concerns that his comments will get them into trouble.[25]   

   [24]   Op Cit @ [65], [66]

   [25]   Op Cit @ [67]

2. In a meeting with [an official] of Iran in [Australian City 1], the applicant became very emotional when discussing the authorities’ inefficiencies, the Basij and cultural and political associations with students in Australia. The applicant claims that the [official] or other students are likely to have reported the incident to the Iranian authorities. He claims that many [students] from Iran are sent on a spying mission for the government.

3. The applicant claims that in 2011 at a Conference at [Location 1], Australia he has clashed with various Iranian figures, particularly members of [Family B],[26] and [Mr C] who are engaged in [research] projects at the [University 2].[27] Both are members of [Family B], a politically influential [family].[28] The applicant claims that he clashed with [the Family B member] and [Mr C] over the favorable funding they claimed to receive in comparison to other researchers.  The applicant claims that he believes that because they are members of a politically influential family in Iran that, as a result of the clash, he will have been reported by them to the authorities in Iran.[29]    

Applicant’s Online Activity.

[26]   [Source deleted].

[27] [Source deleted].

[28]   [Source deleted].

[29]  Op Cit @ [70]

1. The applicant claims that in Iran he would send emails but would delete them. However in Australia the applicant claims that he has sent emails to friends and colleagues concerning his political views.  The applicant provided copies of many emails which he claims to be against the Iranian regime and the Muslim faith. The applicant claims that his view have been influenced by his knowledge [including] his reading on Quantum Mechanics, issues of causality and the philosophy of Friedrich Nietzsche.[30]   The applicant claims that he sent one concerning Khamenei to many people. The applicant claims that a friend from University responded, [named friend] a member of the Basij, who defended the Khamenei against the applicants point of view.[31] A copy of this email was not specifically provided to the Tribunal and search of the emails provided could not identify the email.

   [30] Op Cit @ [75]

   [31]  Op Cit @ [74]

2. The applicant claims that he has discussed his view with many people over [social media]. The delegate in his decision considered that [number] friends and less than a dozen associates the applicant [had] [was] comparatively limited.  However, the applicant claims that he has discussed his position with many members on [a student forum] which has [number] members and on [a] [forum] which has thousands of members.  The applicant claims that he clashed with members on each [forum] regarding their ideologies. The applicant states that by commenting on [such], his posts can be viewed by thousands of people. In addition he states that he has had conversations with people on other [social media] in which he has put forward strong arguments and engaged in private [conversations] and [email].  

Member of Amnesty International

1. The applicant claims that he has signed many online petitions for the Amnesty International [some] of which have been addressed to the leader, president and judiciary of the Islamic Republic of Iran. The applicant claims that because the names of those who have signed the petitions appear in the petitions once they are forwarded to the authorities it is very likely that he will come to the attention of the authorities. The applicant claims that the Iranian authorities are concerned about their international reputation and in the event they discovered that he had signed the petitions they would jail him or persecute him as they have done with so many other activists or protestors.[32]

Difficulty in obtaining employment.

[32] Op Cit @ [82]-[84]

1. The applicant claims that he was not been able to keep his university jobs or scholarships. He states that despite having been a first ranked student he was never awarded a scholarship or employment. The applicant believes that he was not awarded a position because he was not affiliated with the Basij and because of his problematic ‘Gozinesh’[33] profile.[34]   

   [33]  In Iran, the Gozinesh Law (passed in 1985) has the effect of prohibiting a number of religious and ethnic minorities from fully participating in civil life. This law and other gozinesh provisions make access to employment, education, and a range of other areas conditional upon a rigorous ideological screening, the principal prerequisite for which is devotion to the tenets of Islam.

   [34]  Statutory Declaration dated 27 June 2018 @ [85]

2. The applicant claims that after he graduated he had difficulty in obtaining employment. He claims that his applications [where] either rejected or ignored.  In addition the applicant claims that he was not able to obtain any employment with a government agency. The applicant referred to an email by [an ex-member] of [his] Faculty in Iran, in relation to the discrimination against the applicant’s employment.[35]  

   [35] Op Cit @ [86]-[87]

3. The applicant states that his academic residency and work experience in Iran were not paid positions but rather work experience and considered free labour. The applicant claims that the private economy in Iran is controlled by the Iranian Revolutionary Guard.  As such, due to his attitude and view regarding religion and politics he is unlikely to get a job in the private sector upon his return to Iran.

Applicant’s involvement in [an atheist organisation]

1. The applicant claims that he is an open Atheist and as a result if he returns to Iran he will be killed. He states that in or about 2014 he became involved with [an online organisation]. However, he says that he clashed with the organization as he did not agree with their approach of insulting Muslims.

2. In or about 2015, the applicant became a member of [Organisation 1] in [Australian City 1], but states that he had been attending meetings since 2013.[36] The applicant provided a letter from [Mr A] of [that organisation] [dated] June 2018 that states he has been a member since 2013.  A letter by [Mr B] of [Organisation 2] of Australia and event organizer of [another organisation]. He claims that the applicant has frequently attended events arranged by [his organisation] and that he is involved in various campaigns supporting atheist and secular causes in Australia.

Alcohol Consumption

[36]   Op Cit @ [93]

1. The applicant claims that he consumes alcohol which is a crime in Iran and punishable under the Islamic Penal Code initially by lashes and then imprisonment and death on repeat offences. The applicant claims that he has an interest in red wine which is known within the Iranian community. As a result he receives bottles of wine as gifts from visiting friends   and is consulted about good brands of wine to purchase and consume. In addition he says that if state agents have collected information on him in Australia they would know that he consumes alcohol.

2. The applicant says that if he was to return to Iran he would continue drinking alcohol and would therefore be at risk of being persecuted.

COUNTRY INFORMATION

1. In addition the Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT report on Iran dated 7 June 2018 (‘the DFAT Report’) notes the following:

   Azeris[37]

   [37]   DFAT report on Iran dated 7 June 2018 @ p.19

   3.15Approximately 12.3 million Iranians are Azeri, making the community Iran’s largest ethnic minority. The Turkic-speaking Azeris are Shi’a, and reside mainly in the provinces of north-west Iran that border the nation of Azerbaijan, and in Tehran. Azeris are known as Azeri Turks, Iranian Azerbaijanis, Iranian Azeris, Iranian Turks and Persian Azerbaijanis. Azeris are politically and socio-economically diverse: they work in a variety of professions, have a wide range of income and wealth levels, and have attained a range of education levels. Azeris are on the whole better integrated into Iranian society, business and politics than are other ethnic minorities. The Azeri community has substantial economic weight, and several of its members hold important positions in the state apparatus and in the armed forces. Ayatollah Khamenei is (reportedly) half-Azeri, as is former Prime Minister and leading opposition figure Mir Hossein Moussavi.

   3.16While Azeris are well-integrated into Iranian society, DFAT is aware of some reports of official discrimination. Reports include claims that the government has prohibited the use of the Azeri language in schools, harassed Azeri activists or organisers, and changed Azeri geographic names. In June 2016, the media reported protests in Azeri-majority areas over the publication in state media of lines of poetry that insulted Azeris, resulting in the arrest of 25 protesters. Authorities also arrested an Azeri couple in August 2016 in connection to their online activism. In March 2017, an Azeri activist was charged with national security offences for advocating state recognition of the Azeri language and making a speech at a friend’s wedding in which he called for an end to discrimination against Azeris in Iran. During the same month, authorities re-arrested an activist who had just been released following a prolonged hunger strike.

   Political Opinion (Actual or Imputed)[38]

   [38] DFAT report on Iran dated 7 June 2018 @ p.25

   3.46The Constitution contains several articles that relate to the expression of political opinion. Article 23 states that the investigation of individuals’ beliefs is forbidden, and that no one may be molested or taken to task simply for holding a certain belief; Article 24 states that publications and the press have freedom of expression except where it is detrimental to the fundamental principles of Islam or the rights of the public; Article 26 permits the formation of political parties (and other professional/ religious associations) provided they do not violate the principles of independence, freedom, national unity, criteria of Islam, or the basis of the Islamic Republic; and Article 27 permits public gatherings and marches, provided arms are not carried and they are not detrimental to the fundamental principles of Islam. ……

   3.48Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media. This freedom is not unlimited, however – a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation (see Media). Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times (see Critics of the State). Some human rights observers report there is some uncertainty over whether or not a topic is actually ‘red line’.

   Critics of the State

   3.52In the past decade, Iranians have twice taken to the streets in large numbers to protest the government. Following the June 2009 presidential election, up to three million supporters of reformist candidate Mir Hossein Mousavi turned out on Tehran streets to protest the official verdict that conservative candidate Mahmoud Ahmadinejad had won in a landslide (see Recent History). The ‘Green Movement’ took its name from Mousavi’s campaign colour which, in turn, was derived from a poster showing former President Mohammad Khatami (the reform movement’s first standard-bearer) placing a green sash over Mousavi. The Green Movement evolved in the next six months following the disputed election from a mass group of angry voters to a nation-wide force peacefully demanding the democratic rights originally sought in the 1979 revolution. Green Movement protesters used public holidays and national commemorations as opportunities to rally on the streets of major cities, chanting slogans that challenged both the system and the Supreme Leader himself. In response, the government despatched security forces, including the IRGC, Basij units (see Basij Resistance Force), and plain-clothed paramilitary forces. These forces beat thousands of protesters and arrested hundreds, while snipers killed dozens. By early 2010, the government had succeeded in quashing public displays of opposition. ‘Green Movement’ discusses the aftermath of the 2009-10 demonstrations and provides an assessment on the ongoing risk profile of those involved.

   3.53In late December 2017, a small protest in Mashhad rapidly escalated and spread to more than 50 other cities and towns across the country, involving an estimated 40,000 protesters. The protests, which spanned ethnic, religious, and ‘party’ lines, focused on economic hardships but also had a virulent anti-government and anti-regime element. While the demonstrations were largely peaceful, there were some isolated low-level incidents in which protesters set fire to security forces’ offices or other infrastructure. While police initially took the lead in attempting to disperse the protesters, the government again deployed basij units and the IRGC and succeeded in ending the demonstrations by early January 2018. Estimates of the total number of arrests vary significantly: while one Reformist MP said that authorities had arrested 3,700 (including 68 university students), a Dubai-based news source claimed that over 8,000 were detained. Some fatalities resulted from the protests, including among members of the security forces, but the overall scale and death toll (still unclear) of the protests was far lower than that of the 2009-10 demonstrations. During the demonstrations, a number of heavily promoted pro-government counter-rallies were held in several Iranian cities.

   3.54The 2017-18 protests and those in 2009-10 share some common elements. In both cases, the demonstrations developed an expanding set of demands, including against the government itself. On both occasions, authorities, including the Supreme Leader, declared the unrest the result of ‘foreign conspiracies’, and sought to restrict the protesters’ ability to communicate by disabling social media communications tools (see Media). Authorities arrested large numbers of demonstrators during and after both sets of protests, some of whom subsequently died in custody (see Deaths in Custody). International observers have, however, noted a number of key differences between the two events:

   -       the spark for the 2017-18 protests was underlying frustration over the economic situation (see Economic Overview), rather than anger over allegations of electoral fraud;

   -       the 2017-18 protests were concentrated in smaller cities on the periphery and spread, whereas the earlier protests took place only in major cities;

   -       participants in the 2017-18 protests were predominantly conservative, working class Iranians rather than the reformist, middle-class urban Iranians of 2009-10 (many of whom did not back the latest protests);

   -       the 2017-18 protests had no defined leader and never represented a genuine threat to either the domestic control of the security forces or the government itself;

   -       the 2017-18 protests had a significant ethnic element (see Race/Nationality), which was not the case in the earlier protests;

   -       Political leaders, particularly the more moderate elements, adopted a largely conciliatory response to the 2017-18 protests, recognising the legitimate concerns of those demonstrating (particularly on the economic side), while security services took a relatively measured approach, neither of which was the case in 2009-10.

   3.55DFAT assesses that those identified as having played a leading role in the 2017-18 protests are likely to face official discrimination, including arrest, monitoring and continuing harassment. DFAT assesses it unlikely that authorities will similarly target ordinary protesters whose motivation to demonstrate was to protest economic difficulties.

   Media[39]

   [39] DFAT report on Iran dated 7 June 2018 @ p.30

   3.70The Constitution and various legislative provisions place significant constraints on media freedom. The Preamble to the Constitution specifically states that the mass communication media, radio and television, ‘must serve the diffusion of Islamic culture in pursuit of the evolutionary course of the Islamic Revolution’, and ‘while the media should be used as a forum for the healthy encounter of different ideas, it must strictly refrain from diffusion and propagation of “destructive and anti-Islamic practices”’. Chapter XII: Radio and Television (Article 175) reiterates this instruction, and gives the Supreme Leader power to appoint and dismiss the head of the state broadcasting authority. The Press Law (1986; amended 2000) sets out the role, rights and restrictions of the media. It gives the press the right to publish the opinions, constructive criticisms, suggestions and explanations of individuals and government officials; and prohibits government or non-government officials attempting to censure or control the press. It bars the media from publishing articles that violate Islamic principles, codes, and public rights, including (but not limited to): ‘atheistic articles’, ‘promoting subjects that might damage the foundation of the Islamic Republic’, ‘creating discord by raising ethnic and racial issues’, ‘offending the Supreme Leader and senior religious authorities’, and ‘insulting lawfully respected persons or institutions, even by means of pictures or caricatures’, and criminalises the direct or indirect use of foreign aid by media organisations. Violations of the Press Law are punishable by terms of imprisonment of between two months and two years, or up to 74 lashes. Beyond these ‘red lines’, media outlets engage in robust debate, and criticise government policies, the President, Ministers, and other senior officials.

   3.71 Islamic Republic of Iran Broadcasting (IRIB) operates national and provincial television services, while its radio services include a parliamentary network, Radio Koran, and a multilingual external service. IRIB also operates multilingual international television and radio services and a 24–hour English and French languages news and documentary network, Press TV. There are approximately 50 national daily newspapers, of which those with the widest circulation and influence adhere to a conservative editorial position (although those focusing on sport are the biggest sellers). Iranians from across the social and political spectrum are active and enthusiastic users of social media – according to Internet World Stats, as of June 2017, 56.7 million Iranians (70 per cent of the population) were internet users. Authorities routinely block or filter websites they consider objectionable, including major international social media sites such as Facebook, Twitter, YouTube, and Flickr (although several senior officials are active users of them). Iranians can generally use virtual private networks (VPNs) and other methods to circumnavigate these blocks and to anonymise their online activities. Iranians are avid users of social messaging services, although these are also frequently blocked. The government announced in 2016 that it had completed the first phase of a national information network, a project aimed at creating a stand-alone domestic intranet. It is unclear how far the project has progressed.

   3.72 All television and radio broadcasting from Iran is state-controlled and reflects official ideology – Article 175 of the Constitution prohibits private broadcasting. Diversity of opinion does exist within the Iranian domestic media landscape, but comes in the form of political debate between particular factions of the ruling establishment. While such debate can be robust at times, it occurs within relatively narrow margins, does not cross ‘red line topics’ (such as those mentioned previously), and occurs strictly within a framework of support for the Islamic Republic. The Press Law requires journalists and publishers to obtain a press license from the Press Supervisory Board (PSB), which sits within the Ministry of Culture and Islamic Guidance. These licences are difficult to obtain and the PSB has often rescinded them in retaliation for reporting deemed critical of the ruling establishment. While such actions are more likely to target media outlets carrying pro-reformist content, they have also occurred against outlets promoting a conservative line. For example, in June 2016 the PSB ordered the closure of a conservative online news site in June 2016 after it claimed that government officials had met with an Afghani Taliban leader prior to his death in a US drone strike in Pakistan. In the same month, the PSB ordered the closure of a reformist newspaper after it published a story criticising prison conditions. The paper had earlier published a story criticising the IRGC’s handling of the arrest of US sailors in Iranian territorial waters. It reportedly resumed publication later in the year.

   3.74Courts have frequently handed down long sentences against individual journalists deemed to have breached the ‘red lines’, including those who publish material online. Rather than using the provisions available to them under the Press Law, authorities have often invoked legislation related to national security or religious-based offences. This legislation allows for more severe punishments, including prison sentences ranging from six to ten years or more. In one such case in April 2017, three citizen-journalists received 12 year prison sentences after being convicted (variously) of ‘insulting the Supreme Leader(s)’, ‘insulting what is most sacred in Islam’, and anti-government propaganda. Authorities had arrested the three in September 2016 for content they had posted online. Courts frequently set very high bail for detained journalists, and authorities have taken a hard line against journalists’ associations that have advocated for freedom of expression and journalists’ rights. Authorities closed down the Association of Iranian Journalists in 2009 and have refused to permit it to resume its activities.

   3.75Authorities are sensitive to satellite broadcasting from outside the country that they deem hostile to the government. Dozens of Farsi-language television and radio stations broadcast into Iran from abroad. It is illegal to use satellite equipment, and authorities have periodically undertaken campaigns in which they raid homes, confiscate satellite dishes and fine the owners or installers of the equipment. However, many Iranians continue to own satellite dishes and use them to watch the banned channels – there are reportedly 8 million satellite dishes in the country, and up to 85 per cent of the population has access to satellite channels. Authorities also engage in systematic (but not comprehensive) jamming of foreign satellite signals for viewers in Tehran and other cities, targeting in particular BBC Persian. Channels such as BBC Persian can also be accessed via the Internet, using VPNs. International media advocacy groups have reported that the Iranian judicial and intelligence services have sought to influence the Farsi-language sections of international media outlets by putting pressure on Iranian journalists based abroad. This pressure can manifest in intimidating message or death threats; in freezing of the journalists’ financial assets within Iran, thus preventing them from conducting business there; or in harassment and intimidation of family members in Iran, often through summoning them to meetings with security officials.

   3.75 A small number of international media bureaus and foreign journalists have permission to operate within Iran. Foreign media personnel are subjected to close monitoring and oversight by monitors, and are restricted in the topics they may cover and areas they may visit. The government routinely denies visas to foreign reporters who have previously criticised it. Authorities also target Iranian nationals (including dual nationals) working with foreign media outlets within Iran. In January 2016, a Washington Post correspondent (and dual Iranian-American national) was released as part of a prisoner exchange after spending 18 months in prison (including 50 days in solitary confinement). The correspondent had been convicted in 2015 of espionage charges, which were denied by his family and the Post. In February 2016, a former BBC Persian Service reporter (and dual Iranian-British national) was arrested in Tehran on unspecified charges, having previously been interrogated repeatedly about his work. Reports indicate that the reporter has since been released on bail, although his current legal status remains unclear.

   3.76 Authorities have stepped up efforts to control traditional and online media at times of particular political sensitivity, such as during election campaigns and major protests. In the lead-up to the May 2017 presidential elections, security officials pre-emptively detained a number of journalists associated with reformist newspapers. Authorities also arrested several channel administrators for the Telegram messaging app, blocked a reported 173,000 Telegram accounts, and arrested around 100 Internet users, predominantly Telegram users. Authorities also targeted Telegram during the 2017-18 protests (see Critics of the State), blocking access to it and several other applications, and arresting around ten citizen-journalists. In April 2018, the government announced it would permanently block Telegram over national security concerns and would replace it with its own messaging service. Nonetheless, users with access to VPNs are able to skirt around these restrictions. Domestic media outlets’ coverage of the protests was highly slanted and dismissive, reportedly at the instruction of the government.

   3.77 DFAT assesses that journalists who attempt to cover the ‘red line’ topics identified above face a high risk of official discrimination, which may include arrest, monitoring, harassment, and travel bans.

   Civil Society Activists/ Human Rights Defenders[40]

   3.60By regional standards, Iran has a highly developed civil society with a large number of religious and secular non-governmental organisations (NGOs) working across a wide range of fields. According to local interlocutors, NGOs that work on non-political issues such as poverty operate relatively freely. International observers agree that the ability of activists to carry out human rights-related activities, however, is considerably restricted. Freedom House has reported that the Centre for Human Rights Defenders remains closed, with several of its members in prison.

   3.61In her August 2017 report, the UN Special Rapporteur said that the situation of human rights defenders, including anti-death penalty campaigners (see Death Penalty), women’s rights activists (see Women), independent trade unionists (see Trade Unionists), human rights activists, minority rights activists (see relevant sections in Race/Nationality), and the relatives of those summarily executed or forcibly disappeared in the 1980s (see Extra-Judicial Killings) was deeply concerning. She noted a significant deterioration in the situation of human rights defenders in the lead up to the May 2017 presidential election, including a high number of arrests and detentions. The previous UN Special Rapporteur noted acts of intimidation and reprisals against human rights activists in detention, including torture and other mistreatment (see Torture); and expressed particular concern over reports of reprisals against human rights defenders who had engaged with him and cooperated with other UN mechanisms.

   3.62International sources have reported that authorities have prevented some civil society activists and human rights defenders from travelling abroad; that human rights activists have reported receiving intimidating phone calls, threats of blackmail, online hacking attempts, and property damage from unidentified security officials; and that these officials have sometimes harassed or arrested the family members of human rights activists. Courts routinely suspended the sentences of human rights activists, allowing authorities to arrest or imprison individuals arbitrarily at any time on the previous charges.

   3.62In recent months, international observers have identified a growing trend whereby authorities have targeted civil society activists engaged in environmental issues. In the most prominent recent case, a 64-year old dual national Iranian-Canadian university professor and founder of Iran’s most prominent environmental NGO was arrested on 24 January 2017 along with six associates. Officials reportedly accused the group of being a CIA/ Mossad front for collecting sensitive information about Iran’s missile program. On 9 February, officials told the professor’s wife that he had confessed to the allegations and committed suicide in prison (see Deaths in Custody). Separately, on 10 February 2017, authorities briefly arrested and interrogated the Vice Chairman of the Environment Protection Organisation, an American-educated academic on leave from London’s Imperial College, who had returned to Iran at the invitation of the government as part of an official initiative to welcome back expatriate Iranians, and who subsequently fled the country. Environmental issues have become increasingly politicised in recent times, and were a key driver of the 2017-18 protests (see Race/Nationality).

   3.63DFAT assesses that civil society activists who work in areas connected to the promotion of human rights face a high risk of official discrimination, which may include arrest, monitoring, harassment, and travel bans.

   [40] DFAT report on Iran dated 7 June 2018 @ p.28

1. Immigration and Refugee Board of Canada reports[41] that:     

   [41] Canada: Immigration and Refugee Board of Canada, Iran: Treatment of anti-government activists by authorities, including those returning to Iran from abroad; overseas monitoring capabilities of the government (2012-2013), 20 January 2014, IRN104730.E , available at: 17 March 2019]

   ‘Treatment of Anti-government Activists Upon Return to Iran

   Several sources indicate that the treatment of anti-government activists who return to Iran is case specific (Small Media 14 Jan. 2014; Professor of History 13 Jan. 2014; Professor of Political Science 5 Jan. 2014).

   The Professor of history said that, after the elections, "a number of academics in Iran who were fired from their positions based on their political opinion or secularism during the Ahmadinejad period, are now being called back to work" (13 Jan. 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

   In correspondence with the Research Directorate, a representative of the United Nations High Commissioner for Refugees (UNHCR) indicated that UNHCR Turkey is aware of political activists or perceived activists who have been identified through techniques such as photographic screening or interrogation by the authorities upon their arrival at the Tehran airport from abroad (17 Jan. 2014).

   The Professor of political science indicated that people "who are known for their anti-government activities outside Iran are treated harshly" when they return (5 Jan. 2014). The Director of Small Media similarly indicated that "if an activist is known to authorities, he or she will most likely be targeted and face prosecution upon return" (Small Media 14 Jan. 2014). The Director cited two recent cases of anti-government activists who returned to Iran and were arrested: one in December 2013 and another one in January 2014 (ibid.).

   The IHRDC representative stated that:

   There have been numerous reports about Iranians who are arrested upon their return to Iran. Mahmoud Alavi, the Iranian Minister of Intelligence, has made remarks indicating that individuals who left Iran in the aftermath of the 2009 presidential election should not be afraid of returning to Iran. In recent months, however, a number of individuals who returned to Iran have been charged or arrested. Hamid Babaei, a graduate student in Belgium, was reportedly arrested and charged with espionage and having contacts with foreign enemy states. He has been sentenced to six years of imprisonment. Serajjeddin Mirdamadi, a reformist activist, was charged with national security crimes after returning to Iran. He has not been sentenced yet, but his attorney has stated that his charges could carry a sentence between three months to a year of imprisonment. Another example is Mohammad Amin Akrami, a cyber activist who was arrested after returning to Iran from India ... (15 Jan. 2014).

   Other sources also report on the arrests upon return to Iran of Hamid Babaei (All Human Rights for All in Iran 9 Jan. 2014), Serajeddin Mirdamadi (Radio Zamaneh 9 Jan. 2014), and Mohammad Amin Akrami (ICHRI 18 Dec. 2013). According to All Human Rights for All in Iran, an Austrian-based NGO funded by the European Union and the Austrian Development Co-operation to assist Iranian human rights defenders (All Human Rights for All in Iran n.d.), Hamid Babaei was reportedly not arrested for his anti-government activities, but rather for refusing to give authorities information about Iranians in Belgium (ibid. 9 Jan. 2014). Sources indicate that Samad Khatibi, a filmmaker who campaigned for President Rouhani, was arrested in November upon his return to Iran (IHRDC 15 Jan. 2014; The Guardian 5 Dec. 2013). The Guardian reports that he was arrested "upon arriving in Tehran from the Netherlands" (5 Dec. 2013). The IHRDC representative indicated that "he has since been released" (15 Jan. 2014).

   According to the Director of Small Media, if the activist is not known, it is hard to say how he or she will be treated (14 Jan. 2014). He explained:

   The risk upon return depends on the visibility of the individual both online and offline. If someone is not visible enough, they may not be at risk, however it is not possible to say that they will not be at risk because often the authorities act rather arbitrarily. Sometimes, even people who are not high profile activists are arrested and prosecuted upon return to Iran for minor political activities that they have done online while being outside of Iran. (Small Media 14 Jan. 2014)

   The European Court for Human Rights (ECHR), in the "Case of S.F. and Others v. Sweden," states that Iranians returning from abroad are screened on arrival in Iran (ECHR 15 Aug. 2012, 15). The same source notes that some of the factors which may lead to an inquiry by the Iranian authorities on return include being of "Kurdish and Persion origin, culturally active and well-educated" (ibid., 15-16)……...

   Overseas Monitoring Capabilities of the Iranian Government

   Several sources indicate that Iranian authorities monitor online activities (Small Media 14 Jan. 2014; Professor of History 13 Jan. 2014; ECHR 15 Aug. 2012), including online activities outside of Iran (ibid.; Professor of History 13 Jan. 2014). The Director of Small Media said that such monitoring includes social media, blogs, and popular media, including small websites, which may be highly visible (14 Jan. 2014). The Professor of political science stated that "all Iranian websites are closely monitored by the regime" (5 Jan. 2014). The Professor of history indicated that the Iranian government is "very active" in cyber-monitoring, including monitoring e-mail and online conversations (13 Jan. 2014).

   The ECHR, in the "Case of S.F. and Others v. Sweden" stated that

   relevant country information on Iran ...confirms that Iranian authorities effectively monitor Internet communications and regime critics both within and outside of Iran. It is noted that a specific intelligence "Cyber Unit" targets regime critics on the internet. (ECHR 15 Aug. 2012, 15)

   Without specifying whether it applies to anti-government activists, a Small Media report indicates that the Iranian Cyber Police (FATA) often uses unconventional methods to catch cyber criminals, including acts of manipulation on social networking sites. One of the most popular methods used by FATA is the creation of fake Facebook profiles, through which they may encourage other users to divulge personal information. (Oct. 2013, 3)

   The Director of Small Media indicated that Iranian authorities do not have the technical capacity to conduct "blanket monitoring," which means that they do not follow all Iranian citizens' online activitites (14 Jan. 2014). Similarly, the Professor of history indicated that the government does not seem to monitor all online activities (Professor of History 13 Jan. 2014). The Professor of history stated that the Iranian government mostly focuses on monitoring the activities of people that they think want to overthrow the regime. Their definition of people who want to overthrow the regime does not only consist of people who want to overthrow the regime militarily, but also any real or perceived organized opposition to the regime, including people who take on the cause of religious minorities. For example, people who take on the cause of Baha'is may be considered to want to overthrow the regime ...(ibid.)……..’

Conditions for Returnees

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

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

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

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

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

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[42]

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

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[43] 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.

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

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[44] 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.

Applicant’s Relevant Grounds

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

1. The applicant submits that his claims falls within the scope of s.5J(1)(a) of the Act by reason of his imputed political opinion as a person who has apostatised against the Iranian regime and the Muslim faith. A political opinion need not be an opinion that is actually held by the refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor.[45] In Saliba v MIMA[46] the Court held:

   ‘... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.’

   [45]    MIEA v Guo (1997) 191 CLR 559 at 571 referring to Chan v MIEA (1989) 169 CLR 379 at 416 per Gaudron J and at 433 per McHugh J.

   [46] (1998) 89 FCR 38 at 49.

2. In MIMA v Y[47] ,the Court,  when considering the ‘political opinion’ under the Refugee Convention stated that ‘[t]he words ‘political opinion’ are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[48] In considering the Tribunal’s finding that the applicant’s stance against criminal activity by police was the expression of a political opinion the Court held:

   ‘In the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State. A person may be regarded as an enemy of the State by virtue of holding and propounding views which are contrary to the views of the State or its Government, or which are antithetic to the Government and the instruments which enforce the power of the State, such as the armed Forces, Security Forces and Police Forces or which express opposition to matters such as the structure of the State or the territory occupied by it and like matters.’

   [47]    MIMA v Y [1998] FCA 515 (Davies J, 15 May 1998) at 5.

   [48] [1998] FCA 515 (Davies J, 15 May 1998) at 4.

3. In circumstances where the applicant claims that he has been expressing his views against the Iranian regime and Muslim faith by various means including attending rallies and protests and through the use of social media that he would be imputed by the authorities with a political opinion that is contrary to the Iranian regime and Muslim faith.

Applicant’s well-founded fear.

1. In Chan v MIEA[49] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[50]

   [49] (1989) 169 CLR 379 at 396.

   [50] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to Iran.

3. However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [51]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [51]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[52]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [52]   MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. The applicant claims that in the event he is returned to Iran there is a real chance he will suffer serious harm by the authorities by reason of him criticising the Iranian authorities and his rejection of his Muslim faith and being an atheist and his consumption of alcohol. Accordingly, the applicant claims that he is a person who has a well-founded fear of persecution, pursuant to s.5J(1) of the Act,  that is by reason of  imputed political opinion and his religion. Based on the applicants evidence to the Tribunal it accepts that the applicant has a subjective fear of being persecuted for a reason mentioned in s.5J(1)(a) of the Act. 

Delay

1. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[53] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[54]

   [53]   Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [54]   Subramanium v MIMA (1998) VG310 of 1997.

2. In this case the applicant arrived in Australia [in] May 2008 as the holder of a Postgraduate Research Sector (Subclass 574) visa and did not apply for a protection visa until [January] 2014, a period of approximately 5 years and 8 months. In addition the applicant did not express any concern in returning to Iran in his letters to the Minister or in his interviews on [date] December 2013 and [date] December 2013.[55] While the Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears, in this case the Tribunal has some reservations about the credibility of the applicant’s evidence based on the circumstances in which the applicant applied for a protection visa together with his delay in making the application. The fact that the applicant did not make his claim for protection at or around the time he arrived in Australia indicates that on an objective basis, he did not hold a fear of persecution in Iran but merely sought to stay in Australia for other reasons.

   [55] Statutory Declaration dated 27 June 2018 @ [42]

3. The applicant states that he wanted to study and gain permanent residency through Australia skilled visa program. He explained that this was his preferred option as he believed that it would leave ‘space’ for those who were not as fortunate as him (i.e. educated). As he was eligible for other options and that he was not sure that he qualified as a refugee the applicant made his application for permanent residency through the skilled visa program rather than applying for protection visa. The applicant states that he did not mention his fear of persecution as he believed that they were not relevant to his application for a student visa. Finally, he states that as a result of the bullying experienced by his PHD supervisor he suffered mental stress and as a result did not turn his mind to making an application for protection. 

1. In addition the applicant stated that he had not appreciated that he had become unlawful [in] November 2013 and that his situation had become so serious. As a result, and given the time of the year the applicant did not obtain any legal advice as to his situation.  

2. Tribunal accepts the applicant’s evidence that he focused on obtaining permanent residence in Australia based the Australia skilled visa program rather than making a protection visa application. He stated that the reason for this was that he was educated and qualified and that he wanted others less fortunate than himself to benefit from the protection regime.

3. The Tribunal accepts that the applicant believed that he had other options in obtaining permanent residency in Australia. Generally, a person who fears for his/her life in their home country would not delay in making an application for a protection visa.  However, in this case the applicant is a highly educated person with an excellent command of the English language. In such circumstances, despite his fear of returning to Iranian, the Tribunal accepts that he believed that he would qualify for a permanent visa based on his skill as a qualified [professional].  

4. Accordingly, the Tribunal gives no weight against the applicant as a result of his delay in making his protection application.  

Applicant’s refugee claim

(a)Return to Iran 2010

1. The applicant’s evidence to the Tribunal was that he returned to Iran during a period of stress leave in 2010 period due to the fact that he was homesick and ‘disorientated.’ Upon arriving in Tehran he was questioned, amongst other things, about his identity, his reasons for returning to Iran and activities he may have been involved in against the government. In addition, the applicant’s email correspondence was also inspected. Therefore, while the applicant was questioned and had his email checked he was not detained or subjected to any serious harm. 

2. The applicant believes that he had been under surveillance in Australia due to the fact that he was asked specifically about having changed supervisor. However, this may have been a fact that the officers picked up while inspecting his email correspondence. Despite the fact that the applicant did not change his password sometime after it had been inspected, the applicant otherwise did not provide any further evidence in support of his belief that he had been under surveillance in Australia.

3. The applicant claims that his thesis had not been cleared because of his acknowledgement of his previous supervisor and because of the applicant’s previous political clashes with the [school]. Nevertheless, despite being told that he would not graduate his thesis was signed off prior to his departure and the applicant was able to leave Iran without incident.

4. The applicant’s evidence indicates that he was not subjected to any serious harm on his return to Iran. The fact that the applicant was questioned upon his arrival in Iran and had his emails checked does not of itself constitute serious harm. There was no evidence that the applicant was otherwise harassed or persecuted during his stay in Iran and he was free to depart the country without incident. As such the Tribunal does not accept that the applicant was under surveillance in Australia and finds that he did not suffer any serious harm on his return to Iran in 2010.     

Surveillance by other Iran Students in Australia

1. The applicant claims that he believes that he would have been reported to the Iranian authorities as a result of his activities in Australia. These activities include having attended rallies in [Australian City 1] at the time of the ‘stolen election’ in 2009 and a vigil for those Iranians who died.  At this time he claims that he activated his [social media account] on which he would post about rallies in Iran and ventilate about politics which would get him into disagreements with friends and individuals. However, in 2010 the applicant returned to Iran without any fear for his safety. Despite having been questioned at the airport on his arrival the applicant remained in Iran and returned to Australia without incident. Accordingly, the Tribunal places no weight on the applicant’s claim that he attended rallies and posted photos and made comments on [social media] in or about 2009 as claimed.

2. In a meeting with the [government official from Iran] in [Australian City 1], the applicant became very emotional when discussing the authorities’ inefficiencies, the Basij and cultural and political associations with students in Australia. While the Tribunal accepts the applicant’s evidence in relation to the meeting, it does not accept that the [official] or other students (including PHD students) were on a spying mission for the government and as such, it does not accept that the students or the [official] would have reported the incident to the Iranian authorities as claimed. As such the Tribunal places no weight in the applicant’s favour in relation to his claim that the [official] and other students would have reported the incident. 

3. The applicant claims that he would have been reported by the members of [Family B] as a result of his clash with them at a Conference in 2011. The conference abstracts submitted by the applicant show that [members from Family B] attended the conference. Accordingly, it is plausible the applicant did clash with [Family B] members as claimed and therefore finds that he did clash with them as claimed.  

4. However, the applicant’s claim that he would have been reported by members of [Family B] is merely speculative. There is no evidence to suggest that he has been reported as claimed. The country information is clear that the Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media.[56] The applicant’s evidence was that he expressed his frustration and criticized the fact that they received funding ahead of other research students by reason of their family influence. While this may be seen as a criticism of the State, criticism of the allocation of research funding   does not appear to be a ‘red line’[57] matter that would be considered by the state to be off limits. Further, the fact that the applicant’s clash occurred outside of Iran it is unlikely that he would represent a threat to the state and therefore unlikely any official action would be taken against him.  Accordingly, the Tribunal does not accept the applicant was reported to the authorities as claimed. As such, it does not give any weight in the applicants favour in relation to his clash with members of [Family B] as claimed.

Applicant’s Online Activity.

[56] DFAT report on Iran dated 7 June 2018 @ p.25

[57] ibid

1. The applicant claims that in Australia he sends emails to friends and colleagues concerning his political views. The applicant claims that he sent one concerning Khamenei to many people to which a friend from University responded defending the Khamenei. However, the Tribunal does not appear to be provided a copy of the email. A search of the emails provided by the applicant show that he declared that he does not believe in any religion,[58] expressed support for prisoners of conscience in Iran[59] criticized the regime or executions carried out[60] and express support a prisoner of conscience, Nasrin Sotoudeh.[61] The country information makes it clear that Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media. However, it does note that this freedom is not unlimited and a number of well-established ‘red line’ topics are off-limit which include promoting subjects that might damage the foundation of the Islamic Republic, creating discord by raising ethnic and racial issues, offending the Supreme Leader and senior religious authorities, and insulting lawfully respected persons or institutions. Save for one email in which the applicant does state that he does not believe in religion, the email correspondence provided does not appear to encroach on the ‘red line’ subjects. Even if they do, they appear to be merely brief statements as between known associates rather than commentary on forbidden topics to the broader community.

   [58] Email dated 16 December 2013 @ 12.50; [file number] @ f211  

   [59] Email dated 11 December 2012 @ 18.03; [file number] @ f195  

   [60] Email dated 6 November 2013; [file number] @ f184. 

   [61] Email correspondence dated 5 December 2012; [file number] @ f136. 

2. In email correspondence dated [May] 2013 the applicant criticizes Mohammad Khatami who served as Iranian president from 3 August 1997 to 3 August 2005.[62] It is hard to imagine that the applicant’s criticism of Mohammad Khatami would cause him to be persecuted by the authorities in circumstances where publishing pictures of him, or quoting his words, have been forbidden by the Iranian authorities on account of his support for the defeated reformist candidates in the disputed 2009 re-election of Mahmoud Ahmadinejad.[63]

   [62] Email correspondence dated 13 May 2013; [file number] @ f206

   [63]   >

   The applicant claims that he has discussed his view with many people over [social media]. The applicant claims that he has discussed his position and clashed with many individuals regarding his ideologies on [a student forum] which has [number] members and on [a] [forum] page which has thousands of members.  The applicant has provided the Tribunal with copies of his [social media] posts[64] together with email correspondence between individuals.[65]    

Member of Amnesty International

[64]  AAT file 1600364 @f 150-155;

[65] Op Cit @ f152

1. The applicant fears that he will be jailed or persecute as a result of having signed online petitions for the Amnesty [International]. The applicant’s evidence was that he had signed online [petitions]. His evidence was that the petition would be sent to the Iranian authorities and as a result they will now that he has signed them. He said that the petitions had been removed for the UHNCR website but he was able to provide the Tribunal with a list of approximately 24 emails over an 18 month period from Amnesty [International]. The Tribunal accepts and finds that the applicant did sign the petitions as claimed.

2. However, it is unlikely that by signing the petition the applicant would become visible to the Iranian authorities. Even if the authorities did become aware that he had signed the petitions based on the country information it is highly unlikely any action would be taken against him in the event that he returns to Iran. In such circumstances there is only a remote chance that the Iranian authorities would be aware that the applicant had signed each petition collected by Amnesty International. Accordingly the Tribunal gives the applicant little weight in relation to his claim of having signed online petitions for the Amnesty [International].

Alcohol Consumption

1. The applicant claims that he consumes alcohol which is a crime in Iran and punishable under the Islamic Penal Code initially by lashes and then imprisonment and death on repeat offences. The applicant says that if he was to return to Iran he would continue drinking alcohol and would therefore be at risk of being persecuted. The applicant’s claim is supported by his [social media] and as such the Tribunal accepts and finds that he drinks alcohol. However, the country information reports that despite the threat of harsh penalties a large number of the population, particularly young people drink alcohol in Iran.[66] Members of recognised religious minorities are permitted to manufacture and use alcohol in their own private religious gatherings, and are only subject to the punishment if they consume alcohol in public. Nevertheless, the country information reports that there is widespread use of alcohol across Iranian society.[67] Iranians wishing to obtain and consume alcohol can do so relatively easily. The World Health Organisation reported in 2014 that Iran had the 19th highest rate of alcohol consumption in the world, with an annual average of 25 litres per person.

   [66]  Daily Beast, Iran’s Drinking Problem’ Officially Nobody Boozes in the Islamic Republic and Nobody’s an Alcoholic. Nothing Could Be further from the Truth’ Tranwire, 16 August 2014 dailybeast.com/iran-drinking-problem.

   [67] DFAT Report on Iran dated 7 June 2018 @ p.12

2. Finally, it is reported that prosecutions for alcohol consumption exist, but they are not common.[68] DFAT reports that the police do not usually seek to investigate actively or entrap individuals consuming alcohol in their own homes, but will act if the activity comes to public attention or if instructed to crack down on it. NGOs working in the health sector report that the government has changed its approach to the use of alcohol in recent years from a purely law and order focus to one emphasising treatment and rehabilitation.[69]

   [68] ibid

   [69] ibid

3. The applicant’s evidence was that he has an interest in red wine and is consulted about good brands to purchase and consume in red wine. While the Tribunal accepts and finds that the applicant does consume alcohol, based on the country information, there does not appear to be any restriction on the applicant pursuing his interest in wine as described to the Tribunal in Iran. The applicant has produced a [social media] photo of him consuming alcohol and states that if state agents have collected information on him in Australia they would know that he consumes alcohol. However, the applicant did not produce any evidence to the Tribunal that he has been monitored by the authorities. Even if he was monitored as claimed, the Tribunal does not accept that he would be detained and punished for having consumed alcohol in Australia.

4. While the Tribunal accepts and finds that the applicant would continue to drink alcohol on his return to Iran based on the county information, it appears that the applicant would be able to continue to drink alcohol in the normal course without any fear of persecutionTherefore, based on the country information the Tribunal does not accept that the applicant will suffer persecution by reason of his alcohol consumption in the event he returns to Iran. As such the Tribunal places little weight in the applicant’s favour in relation to this claim.

Applicant’s involvement in [an atheist organisation].

1. The applicant claims that he is an open Atheist and as a result if he returns to Iran he will be killed. The country information reports that Iranian law that while apostasy from Islam is punishable by death,[70] ^[71] death sentences are rare.[72]  In the vast majority of cases, however, defendants charged with apostasy also faced a litany of other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.[73]

   [70]    International Campaign for Human Rights in Iran 2015, Radical Website Calls for Murder of Musician, Iranian Officials Silent, 8 May Acc CXBD6A0DE6097; Weinthal, B 2014, ‘Iran’s Christians flee to unlikely sanctuary in Bulgaria’, Fox News, 11 August CX324336

   [71] Tait, R 2013, ‘‘I am told I will hang for my faith in Jesus': American pastor faces death sentence in Iran’’, The Telegraph, 18 January < CISNET Iran CX302210

   [72]   DFAT report on Iran dated 7 June 2018 @ p.25

   [73]   Ibid

2. There is no provision in the Islamic Penal Code of the Islamic Republic of Iran which specifically criminalises the act of apostasy.[74] The current Islamic Penal Code does, however, state that ‘in accordance with Article 167 of the Iranian Constitution, Shari’a law is to apply in instances where the IPC [Islamic Penal Code] is silent regarding a particular crime.’ This ‘enables the Iranian judiciary to prosecute apostasy cases even though there is no codified provision defining the crime of apostasy.’[75]

   [74]    The Christians in Parliament All Party Parliamentary Group and the All Party Parliamentary Group for International Freedom of Religion or Belief 2015, The Persecution of Christians in Iran, March, p.11 <CISEC96CF1343>; Iran Human Rights 2015, Annual Report on the Death Penalty in Iran 2014, 11 March, p.24 CISEC96CF1352; Iran Human Rights Documentation Centre 2014, Apostasy in the Islamic Republic of Iran, 30 July, p.10 

   [75]    Iran Human Rights Documentation Centre 2014, Apostasy in the Islamic Republic of Iran, 30 July, p.2 CIS29371 

100.Reports of convictions for apostasy are rare, and the application of the death penalty for apostasy even rarer. In its International Religious Freedom Report for 2012, the USDOS reported that the Iranian government considered conversion from Islam to be apostasy, and that this is punishable by death. The relevant section of the report read:

‘The constitution does not provide for the rights of Muslim citizens to choose, change, or renounce their religious beliefs. The government automatically considers a child born to a Muslim father to be a Muslim and deems conversion from Islam to be apostasy, which is punishable by death.’[76]

[76] US Department of State 2013, International Religious Freedom Report for 2012 – Iran, 20 May, Section II

101.The Landinfo, the Norwegian Country of Origin Information Centre ^[77] July 2011 report indicated that convictions for apostasy were very rare in Iran, but did make reference to previous instances where converts had been tried for apostasy and, in one case, been convicted and executed. The relevant section of the report read:

[77] Landinfo 2011, Iran: Christians and Converts, 7 July, p.12 CISNET Iran CISLIB21681

‘In practice, people are convicted of apostasy only very rarely. The most recent conviction is reported to have occurred in 1990, when a minister was executed because of apostasy, evangelization and espionage in favour of the US (Telegraph 2008). The minister had lived as a convert since 1960. In 1994, however, three ministers (whereof two were converts) were abducted and killed by persons unknown (Landinfo 2006). The assassinations attracted international attention and had a profound impact on the Evangelical Christians of Iran, causing the afflicted churches to keep a low profile for an extended period of time.

In 2004, a minister who had converted to Christianity in 1980 was arrested in the context of a Christian conference. This minister, who was an army colonel, was prosecuted, but acquitted of apostasy (Norsk Misjon i Øst 2005). However, he was convicted of violation of the military criminal code, because he had kept his Christian faith secret from his superiors. According to the law, only Muslims can be officers in the armed forces. The man was sentenced to three years’ imprisonment and had his pension rights revoked. In 2005, another minister was stabbed on the street by persons unknown. The minister died from the injuries.’[78]

[78] Landinfo 2011, Iran: Christians and Converts, 7 July, pp.16-17 CISNET Iran CISLIB21681

102.The same report did note, however, that charging converts with apostasy had become more common in Iran. It was noted that threats of apostasy charges had also been used during trials to pressure converts to return to Islam. The relevant section of the report read:

‘Charging converts of apostasy appears to have become more common. For example, a lawyer defending a group of Pentecostalists arrested in Rasht in October 2009 and in Tehran in June 2010 stated that the number of recently converted Christians who were charged with apostasy was rising, and that he defended ten of them (FIDH 2010, p. 26).

Formal charges of apostasy against converts have occurred relatively seldom in Iran, but threats of such charges have been brought up during the trial as a means of pressuring converts to declare that they repent and wish to return to Islam. In many cases the court has decided to release the convert without any charges, or brought other charges, such as participation in illegal house churches or for having had contact with foreign media. Other charges may include “acts against the security of the state”, “insults of Islam” and “propaganda against the system” (FIDH 2010, p. 26).’[79]

[79] Landinfo 2011, Iran: Christians and Converts, 7 July, p.21 CISNET Iran CISLIB21681

103.Recent reports have been located referring to two persons who were found guilty of apostasy. One of these persons was reported to have been sentenced to death, but the death penalty was applied in neither of these two cases. An August 2013 report from Worthy News[80] referred to the case of Mohammad-Hadi Bordbar, who was ‘sentenced to ten years in jail for distributing 12,000 pocket-sized Gospels’ in Iran. Bordbar was reported to have been ‘convicted of membership in an "anti-security organization" and of having the intent to commit crimes against Iranian national security; he was sentenced to five years for each offence’. The report noted that ‘Bordbar was initially arrested in 2009 for converting to Christianity; he was found guilty of apostasy, but was freed on bail’.[81]

[80]    On its website, Worthy News describes itself as “an independent Christian news agency which reports news not covered by other outlets, on key developments in a rapidly changing world”: Worthy News n.d., What is Worthy News?

[81]    DeCaro, J 2013, ‘Iran: Convert from Islam jailed for 10 years’, Worthy News, 16 August CISNET Iran CX313314

104.In an April 2013 report, the United States Commission on International Religious Freedom (USCIRF) made reference to the case of Yousef Nadarkhani, a Christian pastor was sentenced to death for apostasy in November 2010. This death sentence was not carried out, and Nadarkhani was subsequently released.[82]

[82]    United States Commission on International Religious Freedom 2013, USCIRF Annual Report 2013 - Countries of Particular Concern: Iran, 30 April, UNHCR Refworld CISNET Iran CX308205

105.The Tribunal notes that according to the World Values Survey nearly a quarter of Iranians never attend religious services and another 23% only attend on holy days.[83] This would suggest that the applicant’s rejection of Islam would, in the normal course not come to the attention of the authorities. However, the applicant says that it is not within his nature to remain passive or silent about his rejection of religion. In considering how the applicant would be likely to manifest his beliefs upon his return to Iran and the likelihood of that manifestation attracting a persecutory reaction from the authorities,[84] the Tribunal notes that the applicant has consistently declared his rejection of religion through social media and via email directly with friends and associates. In addition in or about 2014 the applicant became involved with [an atheist organisation] online and in or about 2015 became a member of [Organisation 1] after having attended meetings since 2013.[85] In addition, the applicant has displayed willingness to clash with authorities over issues in which he believes, in particular the heads of his University Facility and members of [Family B]. In such circumstances the Tribunal accepts that the applicant will continue to express his atheist views in the event that he returns to Iran. 

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

[84]  Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446 (23 April 2001) per Justice Ryan at [31]

[85]  Op Cit @ [93]

106.Therefore, having accepted that the applicant will continue to express his atheist views upon his return to Iran, based on the country information, the Tribunal finds that there is a real chance that the applicant will, be seriously harmed in the event that he returns to Iran.

Difficulty in obtaining employment.

107.The applicant claims that he will find it difficult to find employment in the event that he is returned to Iran. He claims that because he is not a member of the Basij and due to the fact that the private economy in Iran is controlled by the Iranian Revolutionary Guard he will not be able to obtain a position in Iran due to his attitude and views regarding religion and politics. In circumstances where the Tribunal has found that he will continue to express his atheist views in Iran, the Tribunal accepts that he will find it difficult to obtain employment upon his return to Iran.  Accepting that the applicant will continue to express his atheist views, the Tribunal accepts and finds that he will find it very difficult to secure [employment].

108.In addition, the applicant claims that he was not awarded a scholarship or employment because of his problematic ‘Gozinesh’[86] profile.[87] The applicant claims to be an ethnic Azeri and therefore from one of Iran’s largest ethnic minority.  The country information[88] reports that Azeris are politically and socio-economically diverse. They work in a variety of professions, have a wide range of income and wealth levels, and have attained a range of education levels and are generally better integrated into Iranian society, business and politics than are other ethnic minorities. The Azeri community has substantial economic weight, and several of its members hold important positions in the state apparatus and in the armed forces. Therefore, based on the available country information, while the Tribunal recognises that as an ethnic Azeri the applicant may suffer some minor official discrimination, as an educated person it will not prevent him finding employment in his chosen field. As such the Tribunal finds that the applicant was not prevented from being awarded a scholarship or employment because of his ‘Gozinesh’[89] profile as claimed.

[86]  In Iran, the Gozinesh Law (passed in 1985) has the effect of prohibiting a number of religious and ethnic minorities from fully participating in civil life. This law and other gozinesh provisions make access to employment, education, and a range of other areas conditional upon a rigorous ideological screening, the principal prerequisite for which is devotion to the tenets of Islam.

[87]  Statutory Declaration dated 27 June 2018 @ [85]

[88] DFAT Report 7 June 2018 @ p.19

[89]  In Iran, the Gozinesh Law (passed in 1985) has the effect of prohibiting a number of religious and ethnic minorities from fully participating in civil life. This law and other gozinesh provisions make access to employment, education, and a range of other areas conditional upon a rigorous ideological screening, the principal prerequisite for which is devotion to the tenets of Islam.

Imputed political opinion as a failed asylum seeker

109.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.

110.However, the advice from DFAT[90] 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. However, the applicant’s passport on the department file expires [in] 2022.[91] As such, the applicant currently has a valid passport.

[90] DFAT advice dated 9 June 2018

[91] AAT file No 1600364 @ f216

111.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. 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’, upon his return.  The applicant has been able to depart Iran without difficulty or suspicion in the past. While he was stopped and interrogated upon his arrival into Iran in 2010, the period in which he was interrogated could not be described as constituting serious harm. However, in the event he is stopped and interviewed upon his arrival and required to disclose the contents of his email records, there is a real chance he will suffer serious harm as a result of adverse religious and political opinion of being opposed to the Iranian regime or that he will be imputed with such opinion. As such, the Tribunal accepts 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 religious and political opinion. 

112.Therefore the Tribunal is satisfied and finds pursuant to 91R(1)(a) and (c) that there is a real chance the applicant will be seriously harmed by reason of his political and religious beifiefs in the event that he is returned to Iran. As such, the Tribunal is satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is a person to whom Australia has protection obligations.

113.Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), there is no need for the Tribunal to the alternative criterion in s.36(2)(aa).

CONCLUSIONS

114.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations has protection obligations under the Act for the reasons mentioned in s.5J(1)(a). Therefore the applicant does satisfy the criterion set out in s.36(2)(a).

115.Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), there is no need for the Tribunal to the alternative criterion in s.36(2)(aa)

DECISION

116.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jason Pennell

Senior Member