1620408 (Refugee)

1620408 (Refugee) [2019] AATA 6660 (22 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620408
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:22 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 22 November 2019 at 9:30am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – possession of alcohol – possession of banned materials – Basij extortion attempts – conversion to Baháʼí faith – Ghonabadi Sufis – inappropriate hijab – actual or imputed political opinion – anti-regime poetry and radio work – social media activities – member of Sufi movement – credibility concerns – implausibility of claims – wearing a tie in public – outside the remit of the Basij – delaying in leaving Iran – willingness to engage with Iranian authorities – delay in applying for protection – timing of purported anti-regime activities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iran, applied for the visas on 24 March 2015.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The first-named applicant claimed that he was persecuted by the Basij and detained against his will because he had alcohol and the Basijis tried to extort money from him as a result. He was then coerced into spying on his employer’s company. He was also threatened by a Basiji group because they had found photos and videos of he and his wife attending a Bahai temple in [Australia]. The alcohol case could be reinstituted against him.
Shortly after coming to Australia he heard from his wife’s parents that the Basij found their new apartment and came there several times looking for him and his wife. His brother in Rasht (300 km from Tehran) told him that someone had come looking for them at his house. Five months previously someone had also come to his workplace looking for him
The second-named applicant repeated the first-named applicant’s claims but also stated that the Basij took a framed photo of the Gonabadi Sufi spiritual leader from their home when it was raided, and that the Basij told her husband that they would use their knowledge of the second-named applicant’s Sufi links and family’s political background to harm her.
She claimed that she had been verbally harassed on the streets, falsely arrested for inappropriate hijab and arrested twice in the past for her Sufi activities.
Subsequent Statutory Declarations
The first-named applicant claimed that he grew up in a traditional Muslim household and he embraced religion. He began working as an [Occupation 1] at a [workplace] in 1998 and married his wife in 2005. His wife’s [siblings] were politically active and fled the country in 1999 and were granted refugee status in [Country 1].
When her [siblings] left, his wife was traumatised and turned to Sufism (Ghonabadi Sufis). This led to her being arrested by the Sepah in 2002 and she was only released after giving them a written undertaking she would cease Sufi activities. After marriage his wife only attended Sufi religious ceremonies. One of these was held at a friend’s house in 2006 and the Sepah raided it, detained and interrogated them and made them sign an undertaking not to promote Sufism.
Because she had broken her previous undertaking they were fearful she would be arrested and imprisoned and they thought it best to move away from Iran for a while. She travelled to Australia and stayed here on a working holiday visa in 2006 while he ran his own business in Iran. He visited her twice in Australia and he became aware of a different world. They even visited a Baha’i temple while they were here in Australia and he first drank alcohol.
Because there was no interest from the Sepah he figured they weren’t interested in his wife so he encouraged her to come home, which she did in 2007.On 27 October 2011 he was wearing a coat and tie to work and went to buy some alcohol. A man came up and asked why he was wearing a tie as it was a symbol of Western culture and wasn’t acceptable in Iran. He told him it was none of his business.
He had to purchase some medicine and when he left the chemist the same man came with others and accosted him, searched him and his car and found the alcohol. They were Basiji. They forced him into their car and told him he was in deep trouble because he could be given 70 or 80 lashes for being found with alcohol, along with a fine and jail.
One of the armed Basij said that the applicant was familiar and with his tie and green sweater he must have been a member of the Sabz Group (2009 election protestors). He claimed they were looking for a bribe so he agreed to cooperate. They went to his car and took photos of his documents and other contents of his bag. He was questioned about his alcohol purchase and was then asked to pay a [Amount] IRR bribe. He haggled with them and promised to pay in a few days. They took his Rolex and he gave them a cheque as surety but used a different signature
They rang him and demanded the money two days later and he paid [Amount] IRR in cash and asked for more time for the rest. He gathered together this money and gave it to them but they didn’t return his cheque even though he asked for it. He was stressed over the incident and didn’t tell anyone, even his wife.
His wife was insisting on traveling overseas at the same time as they hadn’t travelled since they went to Europe. They applied for an Australian visa and he went to the interview but two days prior her father had a heart attack and was hospitalised so she didn’t attend the interview. His visa was granted.
In January 2012 an unknown person called him saying he was calling on behalf of [Mr A] (the Basij member who detained him). He asked for more money but the applicant refused. They received numerous threatening calls after that. They wanted to get away from the situation and they applied for visas. His wife’s Australian tourist visa was rejected but she received a Schengen visa in April 2012. He had been granted a tourist visa to Australia in February 2012 but he didn’t want to leave his wife on her own. His wife didn’t go to [Country 1] because she didn’t want to leave him alone at this time.
The threatening phone calls continued and became unbearable. He went to the head of the Contacts Company in their area to request a trace on these calls. His wife was also harassed on the street and his wife and mother arrested for inappropriate hijab. They were released after signing an undertaking. He received a summons from [a] Court to attend a few days later. Before he attended court [Mr A] called again and said the applicant needed to pay [Amount] IRR.
He bluffed [Mr A] saying he had photos and videos of the blackmail and said that if he didn’t end the court case he would disclose this. [Mr A] said he would end the court case but he demanded [Amount] IRR and they arranged to meet. They met and he pad the money and received his cheque back. Things were then quiet for a while.
One day at work security said he had a visitor who said he had come from [Mr A] and wanted to buy a [product] so he showed the around. Other people came over the next few days and did the same. [Mr A] called him and was very polite and he thought things were better and so he told his wife that if her student visa was approved she should go to Australia and he would visit her as he was no longer under threat.
[Mr A] then introduced a merchant friend of his to the applicant under the pretext of wanting to import [products]. The applicant became suspicious about the questions and he recorded their conversation. [Mr A] said the person would come to see the applicant a few days later and he picked the applicant up in his car where the questions became non-commercial and he refused to answer them.
The day after, he was alone at home (his wife was at her cousin’s birthday) when two men rang the doorbell and when he let them in they entered, handcuffed him and bundled him into a van outside their house. He was beaten and something sprayed in his eyes. He was taken somewhere when a man called [Mr B] came in, apologised for what happened and said he would deal with the perpetrators. He said he would return all the extorted money, that he should drop his complaint and gave him a mobile phone telling him to keep it with him and that he would call the applicant soon.
At home he realised that all of his electronic items, satellite and lots of personal and work documents had been taken, as well as family and personal photos . His portable hard disc drive was not taken though. Some of this was returned but the files deleted but his documents weren’t returned.
A few days later [Mr B] called him, picked him up and showed him a file with information about him and his wife and told him that he needed to cooperate and provide information about his business and that things would happen to them if he didn’t.
They wanted to know information about all the [workplace] staff and managers, imports and letters of credit accounts. He was also asked about one of the board members (the son of the owner), his personal life, address and wealth. He realised that he was being used to gather information about the suspects in a large embezzlement scandal. He had subsequently heard this director had received a jail sentence.
His wife’s student visa was granted in September 2012 but they were cautious so as not to attract attention. His parents-in-law sold their house and they moved into thir new apartment and he resigned from work. They were able to leave without problems and arrived in Australia [in] November 2012.
His wife raised the issue of applying for a protection visa but he refused as he hoped that things would get better in Iran. They also heard media reports about the government being tough on boat arrivals which made the confused so they did nothing. They heard the Basij came to their parents-in-law’s house several times looking for them and continued to harass them by calling and insulting them and once entering their house. They went to [Country 1] in March 2014 and haven’t returned to Iran.
The Basij had also called some of his friends since they left and visited his brother in Rasht. Someone had also visited his former workplace asking about him and said they wanted to give something to the applicant but his friend refused. Because of this and the news that he had heard coming out of Iran he decided to request protection.
The second-named applicant also submitted a statutory declaration. She outlined her [sibling]’s political activities and claimed that her family had been monitored for 17 years because of her [sibling]’s political activities. Two of her [siblings] left Iran in 1999 and to get over this trauma she became attracted to a Sufi group after being introduced to the Gonabandi group by a friend. She was arrested by Sepah in 2002 and she had to give a written commitment to stop Sufi activities. She reduced her activities after being married and the last Sufi meeting was in 2005 – the Sepah came again, she was arrested and interrogated but released after giving another commitment.
She felt more scared so she went on holiday to Australia in 2006. She returned to Iran in 2007 and it was quiet until November 2011 when the incidents with her husband and the Basij occurred. She applied for a tourist visa but she missed the interview as her father was hospitalised. They began receiving threatening calls and she was threatened with assault and rape by different men on the street where she lived. She thought they were because of her family’s political history or because of the Sufi issue, but after her husband told her what had happened she realised it was because of the extortion attempt against him.
She and her mother were arrested by the Basij in March 2012 because of an inappropriate hijab. She was made to sign an undertaking and as she left one of them told her to say hullo to her husband and that next time there would be serious consequences. She received a Schengen visa but didn’t want to leave him alone. The rest of the claim largely reiterates what the first-named applicant stated.
AAT Hearing
The applicants were told about the presence of a s 438 certificate and that it covered two travel documents that would have no bearing on the member’s finding. He was asked about two documents handed to the member dated 2015 and 2017 relating to a mental health plan and an un-addressed document respectively. He claimed the first was a referral from his GP to a psychologist (he was still under treatment from his GP). It was put to him that it said a review in three months and he was asked what occurred and he claimed he was on medicine for anxiety. A different GP referred him to another psychologist in 2017 but he only went once and didn’t continue.
He found the documents a few days ago and he could get more if required. Asked if he had seen anybody since the psychologist in 2017, he said he only saw the psychologist the once. He had no health issues that would preclude him from attending the hearing but he may find it hard to recall his history. He was also asked about a document with thumbnails of videos and that there were no dates against each of them. He said he began this [social media activity] about five or six months ago.
Around 2013 he found an online anti-regime radio station with mainly humorous material on it. When his doctor told him to reduce his inner anger he had to start something good. His contact with radio and poetry began a few years ago. He was told that he could expand on this later.
He claimed that if he returned to Iran, he would be lashed or imprisoned by the Basij because of his current political activities and circumstances in Iran. Asked to be more specific, he claimed that he was currently writing poetry for anti-regime radio and reads poetry for them so he has an anti-regime profile. He also prepares a journal and slogan for the radio. – he began this in 2014 but had not made this claim previously so was a new claim. He had no prior political activity. Prior to coming to Australia his problems in Iran were regarding documents they had regarding him.
The second-named applicant was asked if she had any claims separate to those of her husband’s and she said that she relied on her husband’s claim but that she could be accused because of documents and evidence that Basij/Sepah have against her. Asked to be more specific, she claimed that many years ago she had some sort of contact with the Darawish Sufi movement and now they could be conflated with her husband’s profile.
She could be accused of being politically active or against her religion her family had political backgrounds and she had contact with a Sufi movement. [One] sister and her husband had been politically active 20 years ago and the authorities had gotten hold of incriminating paperwork she may also be accused of being politically active and be put into prison. They could also execute her for this.
The first-named applicant’s claims were dealt with first. He claimed that the Basij obtained banned books, pictures and videos from their place and evidence that he consumed alcohol. This was in July 2012. His house was raided because he was targeted after an attempt at bribing the authorities regarding alcohol. Asked to take the Tribunal through events, he said that his frist encounter was 27 October 2011 when he was caught with alcohol and bribed them but they asked for more in 2012. Asked what the circumstances were when he was stopped the first time he claimed that he parked his car to get medicine from a pharmacy and the Basij searched his car and found alcohol.
Asked why they searched his car he said he didn’t know but perhaps they saw him buy the alcohol or because he was wearing a tie. Asked why he would be targeted for wearing a tie, he claimed that he didn’t know but it was the week of university students so when he was at the pharmacy the Basij said the tie was a symbol of the West.

Asked if they saw him buying the alcohol they didn’t stop the seller in the event they could seize more alcohol and/or get a bigger bribe. He said he didn’t know but the seller came to the car and asked what alcohol he wanted and brought it to the car. He was asked why the police didn’t arrest both of them and said that he didn’t know – it is possible that someone reported him. Later a Basiji member he befriended told him that he couldn’t say why he was targeted. He was asked why they searched his car because he wore a tie, which was not illegal, rather than just tell him to take the tie off. And why did they presume he had a car and hadn’t been on a bus or the metro.
He claimed that he didn’t know and had no idea. He had parked his car and was about to enter the pharmacy and asked why he was wearing a tie. This was unusual and he ignored the person, bought the medicine and returned to his car. A person was standing next to the car and when he opened the door he was asked by a person standing there for his registration documents. The person asking about the tie was undercover but the person asking for documents was uniformed.
The uniformed man asked him to open the boot – he had beer, a bottle of wine, bottle of whisky and a bottle of vodka. He was taken to their [vehicle] and they said if he cooperated with them he wouldn’t be lashed as he hadn’t been reported yet. They took him to his car and said he had to pay [Amount] toman normally but they would take [Amount] toman. The [vehicle] had come after they reported the alcohol, another officer drove his car while he was taken in their car. Asked why they took his car as well, he said he didn’t know.
Asked if there was one Basiji in uniform and another in plain clothes he said there was and it was put to him that it was strange there were two Basijis one in and one out of uniform. He said he didn’t know but it was what happened to him. After they asked for the bribe they said he could go to an ATM and take the money out. He offered his credit card and the PIN to show them he didn’t have [Amount] tomans and that his car was boss’s and he asked for time to pay the bribe. They told him to pay by cheque which he did in two instalments. He handed his mobile to them as well.
After paying the bribe the plain clothes officer ([Mr A]) used to come to his workplace or send his colleagues on the pretext of buying or repairing a [product]. They introduced him to a [dealer] by the name of [Mr C] and he wanted to know information about people in his workplace but he wouldn’t give it to him. Asked how often they came to his workplace, he said it was every week or two weeks for around 45-60 days. Asked how the applicant knew they were from [Mr A], he said [Mr A] would tell him just before they came that he had a friend who was interested in buying a [product]. The first time his office security said someone was after the applicant, and this person said he had been sent by [Mr A]. One came to repair their [product] but no one bought anything.
He didn’t know what the purpose of them coming to his office was or what plan they had. One person came twice and this person wanted the applicant to pass information about his managers to him. [Mr A] introduced the applicant to [Mr C]. Asked if he thought the information he was being asked to pass onto the [dealer] was a strange thing. He agreed and for this reason he refused to pass any information. The day after he refused his house was raided by the Basijis.
Two plain clothes officers rang the door and when he opened it they told him to come with them and answer some questions. He was taken to a car and handcuffed, hooded and driven somewhere and he met [Mr B] who had come to the company twice. He was hurt a lot and asked why he was there and being hurt as he hadn’t done anything wrong. [Mr B] apologised saying his colleagues were too rough and said they would take him home and asked for his cooperation. He was taken home and some people entered as well and took his fax machine, PC, laptop, mobile phone, camera, photo albums and documents relating to his clients. Some items were returned the next day such as his laptop, camera and mobile.
The same day [Mr B] gave him a phone and told him to hang onto it and they would contact him via it. They contacted him and wanted information about his managers including their properties and accounts. Asked what job he had, he said he was [Occupation 2] for the company and in order to get credit facilities he had to prepare reports. Asked why he would have access to personal financial information of these people, he claimed he knew their financials in order to get the credit facility. Asked how this happened that he had access to all their complete financial information; why weren’t some properties in managers’ wives’ names for example; or joint bank accounts. Him having his employers’ complete personal financial records seemed incredible.
He claimed he wasn’t an ordinary employee. He gained their trust and was a personal; [Occupation 1] for some of them. He had access to certain information such as title deeds so he could take these to the bank. He was asked what happened if property were in wives’ names or the individuals had money in overseas accounts. It also appeared extraordinary they would have their business manager as their personal [Occupation 1] as well. They would want to spread the risk of their assets and financial information.
He said they didn’t give him all their personal financial information. It was put to him that it was strange the Basij thought he would have access to his employers’ personal financial information. He said he didn’t have the complete picture of their financial circumstances, just elements that allowed him to obtain lines of credit. He was working for a holding company that controlled about ten companies. Asked if he had previously mentioned that he had also been a personal [Occupation 1] to some of his employers, he said that he had said he had information on his other clients. It was put to him that this wasn’t the same.
[Mr B] contacted him about two days after he was given the mobile [Mr C] and [Mr B] were there and took him to a basement and showed some papers of his and asked him to cooperate with them. [Mr C] showed the applicant illegal photos that he had downloaded from the applicant’s computer. [Mr C] had taken these photos from the top of his television. In Australia he was able to reproduce them from a hard disc that he had brought to Australia and that the Basij hadn’t found during their search of his house.
He was asked how they failed to find the hard disc drive given they had taken so much other stuff. He said it was in the drawer and he believed they were in a hurry. It was put to him that they had taken documents, a fax, the satellite and other things and yet these security officials couldn’t find the portable disc in the drawer. This raised questions as to whether anything was actually taken. He said he didn’t know, but it just happened as he said it did. They pulled the fax machine out with the cable attached. He was asked why they were in such a hurry that they wouldn’t have searched the desk drawer. The drive was small and underneath CDs in his drawer. It was put to him that it was strange that they wouldn’t have pulled the drawer out and emptied it. He said they searched the drawer but didn’t take the drive.
[Mr B] and [Mr C] asked him questions and he tried to give them non-sensitive information. They wanted to know about bank lines of credit and non-bank ones. He was asked why the Basij wanted to know this as it was outside their remit – the police or MOIS would be the ones looking at this. He said he didn’t know as perhaps they were high level or from another organisation. It was put to him that high-level Basijis wouldn’t wander into [his workplace] looking for him – he said he didn’t know and was just saying what happened.
They wanted information about his direct superior (who was now in prison). They were looking for evidence of embezzlement using the lines of credit. It was again put to him that this was well outside Basij’s remit so it didn’t make sense what he was saying. He said he didn’t know who was asking him the questions, just that the person who handcuffed him in the car was a uniformed Basiji.
Between the time he spoke to [Mr B] and [Mr C] and leaving Iran, he tried to cooperate with them by giving some sensitive and non-sensitive information and they got more from the material they found on his devices. Prior to this they had tried to get a visa and he was waiting until the visa was approved. [Mr C] kept on telling him to cooperate or else they would pass on the information to law enforcement. He wanted to leave because of this pressure.
He left on a student spouse visa. The second-named applicant said she was studying a [qualification] that she began in 2013 and had two units still to complete. She couldn’t remember when she was last enrolled but she stopped because she wasn’t mentally prepared and discontinued them. Asked if she had medical certificates to support this she said she did. They had no relatives in Australia, only friends.
Asked if she had previously been refused a visa, she said a visitor’s visa had been rejected previously because they both applied and they were told they would be given a negative decision so she applied singly because she was afraid and she may have been lucky. She didn’t know why she was refused. She had a Schengen visa in 2012 but didn’t use it because she only wanted to use it if the situation became critical.
She didn’t want to leave her husband at home because of the search. She was asked why her husband couldn’t go to a country he could get to without the need for a visa such as Armenia and wait there while she left on her Schengen visa until their visas to Australia were approved. She said that her husband was cooperating so the threat wasn’t yet critical. She wanted to go to Europe to see her family not to seek asylum.
The applicant had a tourist visa for Australia in February but didn’t use it – he could have gone to a visa-free entry and wait for his wife to join him. Or both of them could have left to a visa-free country before coming to Australia. He claimed they heard that in countries like Turkey if people applied for political asylum they would be sent back. People told them who had information about this but he didn’t know if it was true – he was asked whether he checked with UNHCR or the like to see if it was true. He claimed he didn’t have a visa to run away from the country at this stage.
When the threats intensified he pushed his wife to get a visa. It was put to him that, if the threats were sufficient for them to leave Iran they waited for two and a half years to apply for protection after arriving in Australia. He claimed that his visa was for two and a half years and it was possible that they could apply for protection a year or two after arriving. He had been threatened that if he disclosed the issue in Iran his family may be threatened. He was also given wrong information that he may be sent to the islands. He got this information from the internet and agents.
He was asked why he thought this given he arrived by plane and he said that he didn’t know and his wife told him he needed to apply but didn’t as he didn’t want to go to a camp. It was put to him that this was strange that he read this anywhere. He was asked if he had previously said that if he told this information his family in Iran may be threatened. He said he thought he did but couldn’t remember.
In Iran he made many mistakes; paid bribes and spied on his managers and he wasn’t in a good psychological condition and that if he was afraid of camps he could go to Europe which was why they took time to apply. He was asked about the videos he claimed to have uploaded onto [social media] and asked if he did this a few months ago – he said this was correct for the videos but his radio cooperation was from 2013 or 2014.
He was advised about s 5J(6) and it was put to him that his visa was refused in November 2016 and following this he began posting anti-regime content on the internet which he hadn’t previously done. He also claimed to have been suffering from anxiety and yet he claimed that his [social media] videos would be known in Iran. He said that prior to receiving the rejection he had been active under a pseudonym. It was put to him that if he was suffering from anxiety it seemed strange that he would post videos under his own name that surely would have brought more anxiety on to him. His actions seemed inconsistent with his alleged anxiety – he was asked if he cleared his proposed course of action with his medical support staff and whether it would reduce his anxiety.
He claimed his GP said that any work like painting that helped him was good. He was asked whether he specifically told his GP of his visa circumstances and his proposed course of action. He said that he hadn’t. It was put to him that he had only done this to improve his refugee profile and the Tribunal may choose to ignore these actions. He claimed his life had been damaged by these people and he was angry with them as a result. He began writing poems to mentally release himself and he didn’t think for a minute there was a chance of getting a negative response from the department. It had helped him mentally.
Asked about the anti-regime radio work, there was no evidence concerning it during his 2016 Departmental interview and he said he hadn’t raised it. He said he wasn’t very active before the interview but increased after. Asked what he meant by ‘not very active’ he said he was writing short poems and that a person named [Alias 1] sent them the poem. He was still known by this name and only the owner and another knew his real name.
The Iranian government knew his real name and voice because his brother had rung and told him. Many other friends in Iran and Australia also knew this – asked what evidence there was, he said that people could come and testify to this. It was put to him that people saying this, particularly family members would be unlikely to be given much weight. A problem was that he had not previously raised this issue. He claimed that he wasn’t very active when he was preparing his claim but his current representative said he should include this in his claims.
Asked if he had renewed his passport since being in Australia, he said he applied before applying for protection online and there had been no problem. They had wanted to travel to Europe. His poetry was now a ‘brand’ through word of mouth.
The second-named applicant was asked whether the Iranian government was interested in her because of her connection with the Sufi movement. The last contact she had with the Sufis was during a gathering in 2005 – she agreed she had no problems in leaving Iran. She claimed that the documents taken from their house indicated they had converted to the Baha’I faith – they had taken a video saying they had ‘converted’ just for fun. She was asked why she didn’t just say it was for fun. Asked if there was anything that would connect her to the Baha’I faith she claimed she had Baha’i friends and the company she worked for was owned by a Baha’i. Asked if the Baha’i community in [Australia] could vouch for that, she claimed she had a photo from the company that included her friend.
It was put to her that the Tribunal didn’t have a copy of a video but only a note saying that there are two shadow figures saying they had converted. Her husband recorded her and her friend next to each other. She says her face is visible but her friend’s is in shadow and the applicant says she has converted. She was asked why she downloaded a 2006 video that showed this rather than deleting it – surely having this would be the last thing she wanted. She claimed that one doesn’t delete fun moments. She was asked why the authorities would think it was serious given she had no connection to the Baha’I faith through her family.
She said that her friends and work supervisor indicated her links. Asked if she had mentioned this in her claims, she said she mentioned she had Baha’I friends. She was asked whether the only thing connecting to her Baha’I or Sufi allegiances as far as the Iranian authorities were concerned was through the devices taken from her house and she agreed this was. She had no ongoing connection with the Sufi movement – since 2005 she had left Iran five times but had not been questioned at the airport for this.
She claimed she had no problems with the authorities for these issues. It was when her husband was taken away that she was accused of converting to Baha’i. Asked what the issue was regarding her family’s political background, she claimed that it was only relevant because her husband had been taken away. Asked why this wasn’t used against her previously – her sister had been granted asylum in [Country 1] and she visited twice with no problems. She again said they had only become problems since the evidence was taken from their house.
The first-named applicant said that [Mr C] showed him pictures of his wife holding a flag and he could imprison her because of this. It was put to them that country information indicated that Iranians who were failed asylum seekers and had done things to establish a refugee profile and that unless they had a pre-existing political profile in Iran they weren’t really interested in religious conversion or anti-regime social media. They didn’t view these people as threats to the regime. He claimed they had a big file on him when he was forced to cooperate with them and it would be sent to the law authorities if he didn’t cooperate. Anyone who committed blasphemy would be persecuted.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants are a married couple aged [age] and [age] years of age respectively. The first named applicant claimed that if he returned to Iran he would be lashed or imprisoned because of his current political activities (reading anti-regime poetry and producing a journal at a radio station) and that he was wanted by the Basij because they had obtained banned books pictures and videos from their house after it was targeted because of his possession of alcohol.
The second-named applicant claimed that the Basij could use confiscated documents against her because her family had political backgrounds and she had had contact with a Sufi movement in the past.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account some medical documents provided by he applicant both before and after the hearing. He claimed that he was being treated by his GP for mental health issues and had been referred to a psychologist in 2017 and had gone once but didn’t continue. A September 2019 letter from a GP said that the GP was treating him for mental health issues. He stated that he had no health issues that would preclude him from attending the hearing and I do not regard that any of the inconsistencies or implausibilities I noted during his claims could be explained by any medical condition.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Alcohol Find and Basij Blackmail

I do not accept that the applicant was ever stopped by the Basij for alcohol in his possession, or that he was subsequently blackmailed into providing sensitive financial information about individuals within his company. The circumstances regarding the search are difficult to believe. Having allegedly stopped at a pharmacy to buy medicine, a plain clothes Basiji in company with a uniformed one asked him to open his boot and found alcohol.
I find it incredibly coincidental that in a city of nine million people[1] the applicant was zeroed in on by the Basij for a search of his boot at the very time he had alcohol there. I do not accept that it was because he was wearing a tie and a green jumper – even if I were to accept that he was wearing one it is not illegal and the member has seen Iranian men wearing ties on public transport in Tehran without eliciting any interest from people. Nor can I find any country information, nor was any provided to me that men wearing green jumpers were or are imputed with connections to the 2009 protest movement.
[1] accessed 18 November 2019
I also do not accept that they may have seen him buying the alcohol. Given the applicant described the method of purchasing alcohol it is reasonable to believe that the focus of the Basij would have been on the alcohol seller rather than the purchaser given the significantly larger stockpile they could have retrieved (and perhaps bribe they could have elicited) from the seller. I have taken into account what he claimed was correspondence from an attorney in Iran regarding his possible court case (folios 60-64) but lend them little weight. They could have been made on any home computer and I lend more weight to the implausibility of the claim itself – I also note that one letter contains reference to consultation over ‘wearing a tie in public’, which is not illegal in Iran.
Because I do not accept that this event occurred, it follows that he was never asked for a bribe nor that people sent by one of the Basijis visited his workplace every week or two for nearly two months. It made no sense as to what they were trying to achieve by random people coming to the [workplace].
Their subsequent actions lacked credibility and as described the account appears implausible. He was approached to provide information about the company managers and after he refused he was detained and beaten, then returned home and a range of material and equipment was taken, some of which was returned the next day.
The Basij then gave him a phone with which to contact him and then advised him that they wanted the financial information of his company’s managers, including their accounts and property title deeds. There are several reasons to doubt this occurred. To begin with, the Basij are essentially a neighbourhood-based militia designed to suppress dissent and protect the revolution. What they appeared to be doing in this instance was to try to examine the financial records of members of a particular company to uncover embezzlement using lines of credit.
This is well outside the remit of the Basij and a law enforcement or intelligence function. I do not accept that they may have been from another organisation as the applicant was consistent in s=describing them as Basij until this concern was pointed out to him. I also do not accept that the people involved with him were senior members given at least one of them appeared to be doing menial tasks.
I also do not accept that the applicant would have been in a position to know the private financial information relating to the company’s managers. He variously said that he didn’t have the entire range of financial information and that he was also the personal [Occupation 1] to some of them. He had never mentioned previously that he was the personal [Occupation 1] to some of them, and it seems implausible that managers would want to trust their personal financial affairs to someone who also handled the company some of the company finances.
I do not accept that he wasn’t just an ordinary employee but the [Occupation 2] who obtained lines of credit and therefore needed access to individual’s personal financial information. I place little weight on the document that he provided that he claimed was a job offer promoting him from [Position 1] [to Department 1] (folio 69). The letter was dated [October] 2012. Yet in a letter he had provided as part of his protection visa application dated 27 October 2012 (folio 30) he is simply described as an [Occupation 1] in [Department 2]. There is no mention of his position of [Position 1] nor the offer of promotion.
I also do not accept that the applicant had incriminating photos of a Sufi leader in their house or of a video saying that the second-named applicant had converted to the Baha’I faith that were taken by the Basij and used to blackmail him. The applicant claimed that he was able to reproduce them from the hard disc drive (HDD) that the Basij missed when they searched his house. Not only was this an incredibly fortunate coincidence for the applicant, I find it implausible that people who had gone to the trouble of gathering so many devices during the search would have been unable to locate a HDD that was allegedly in the desk drawer under some CDs.
Because I do not accept that the applicant is of any interest to security authorities in Iran it follows that the authorities have not been searching for him or asking his family regarding his whereabouts. I have taken into account the email he claims is from his brother (folios 53-54) but lend it little weight given it is impossible to check its veracity. I give more weight to the range of concerns I have outlined regarding the account of his claim.
The fact that the applicants were under no threat is supported by the fact they individually had visa for refugee-accepting countries but did not travel there. I do not accept that they didn’t want to leave one another behind given they could have travelled to a visa-free entry country together and claimed asylum. I do not accept that they did not go to Turkey for example, because he had heard that the Turks sent Iranians who claimed asylum home. He did not provide any country information to support this claim nor did he ever check with UNHCR whether it was true.
I also note that the applicant has successfully applied for a new Iranian passport without any problem – his willingness to engage with the Iranian government to get another travel document and their willingness to issue him with one is also further evidence that he is of no interest to them. Further, the fact that they didn’t apply for protection until years after arriving in Australia is also not indicative of a well-founded fear of serious harm.
I do not accept that the delay was because his family would be threatened if he discussed the issue (he had not mentioned this previously) or because he thought he would be sent ‘to the islands’. He claimed he got this information from the internet (folio 71) and friends at a BBQ and provided a single online post in support. He never made any effort to verify this information through contacting DIBP, nor has he provided evidence of any advice from registered migration agents (either Farsi-speaking or not).
Anti-Regime Political Activity
I do not accept that the applicant has genuinely sought to agitate against the Iranian regime through an online radio station or uploading of videos onto [social media] or that he would be known by the authorities for doing either. He mentioned neither activity during his DIBP interview, and it is reasonable to believe that if it was of concern he would have raised it earlier. He claimed that the [social media] videos were done after his rejection and that he hadn’t been very active on the radio prior to his visa refusal and the poems were in the name of [Alias 1].
I have taken into account the letter from [a radio station] in [Country 2] (folio 102) that says the applicant has been a volunteer poet since 2014. It does not say how often he has read poems but, given he doesn’t use his own name I am not satisfied that they give him any profile with the Iranian authorities. I also note that his design of the ‘magazine’ occurred in April 2019, well after his visa refusal. I do not accept that his real name is well-known as he provided no evidence to this effect and the offer of his brother or other people affirming this claim would not carry much weight given their lack of objectivity and the inability to verify such a claim. I also lend little weight to the threatening email he claims was sent to his [email] account (folio 52) threatening him by his real name. It appears coincidental that even though he has allegedly been reading poetry since 2014 the only email he has offered to the Tribunal was one received five years later in August 2019, just over a week prior to his AAT hearing.
The applicant had not previously evidenced any interest in poetry or anti-regime activity and it seems anomalous that someone who claimed they suffered from anxiety would then seek to genuinely antagonise the Iranian regime by publicly criticising them. He never sought any advice from his GP as to whether these actions would have been good for his alleged anxiety. It is the timing of the actions though, that is most suspicious in the mind of the Tribunal, the claims coming after the refusal of his protection visa.
As I advised the applicant during the hearing, s.5J(6) requires me to disregard the conduct regarding the uploading of [social media] videos in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim. I have disregarded it as a result.
Second-Named Applicant’s Claims
I do not accept that the second-named applicant would be imputed with having converted to the Baha’i faith or being a member of a Sufi movement, or because [Mr C] had a photo of her holding a flag. To begin with this relies on photos and video being recovered from their apartment during a raid there. Given I have found that no such raid ever occurred and that no one called [Mr C] was blackmailing the first-named applicant it follows that such images or video are not in the possession of Iranian authorities.
I also do not accept that the second-named applicant had a Baha’i work supervisor in Iran. Not only was this very coincidental, she had never mentioned it prior to her AAT hearing. I also do not accept that the applicant would be imputed with being politically active against the regime because her sister and brother-in-law had been politically active 20 years ago and been granted asylum in [Country 1]. Not only was that two decades ago, the second-named applicant has travelled freely overseas and been employed in Iran without problems. The Iranian authorities appear to have no interest in her nor place any restrictions on her movements.
I also do not accept that the second-named applicant has been arrested twice in the past for Sufi activities, falsely arrested on the street for inappropriate hijab or verbally harassed on the street. This relies on her oral testimony and I have already noted that her claim about the raid on their house was fabricated, hence I find that her claim to have been arrested twice for Sufism to have been similarly fabricated. Regardless, the ease with which she has been able to leave and re-enter Iran indicates that she is of no interest to Iranian authorities. I do accept that she may have been stopped and spoken to about her hijab while in Iran but am satisfied that she does not face a real chance of serious harm in the reasonably foreseeable future based on her profile as someone who has been employed and travelled overseas freely.
Failed Asylum Seeker
Although they made no direct claim on this basis I have included it for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[2]
[2] >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that Iranian authorities pay little attention to failed asylum seekers on their return to Iran.[3]
[3] DFAT Country Information report – Iran, 7 June 2018
As the applicants haven’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the first-named applicant’s uploading of [social media] videos for the purposes of the applicant’s refugee claims, I have had regard to them in assessing their claims relating to s.36(2)(aa). The first-named applicant’s name on the [social media] video is [Alias 2]; country information also indicates that 300 hours of video is uploaded to [social media] every minute[4] making it very unlikely it will be noticed, and country information also indicates that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including posting social media critical of the government.[5] In other words, it is very unlikely that his videos will ever be seen by Iranian authorities and even if they did, they wouldn’t seek to prosecute him for his.
[4] [Source deleted]
[5] DFAT Country Information Report Iran – 7 June 2018, p 49.
I also do not accept that the applicants have any interest in or would be imputed with an interest in the Baha’i faith or Sufism, or that the first-named applicant was ever stopped for wearing a tie and searched for alcohol, detained and beaten, blackmailed into providing company financial information to the Basij or anyone else, had his apartment searched or that the authorities have been searching for him since he left Iran.
And while I accept as plausible that the second-named applicant may be spoken to about the way she wears her hijab in the future I do not accept that this reaches the threshold of significant harm. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran, there is a real risk that the applicants will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6660

22 November 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies