1709089 (Refugee) - [2019] AATA 5863

1709089 (Refugee) [2019] AATA 5863 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709089
COUNTRY OF REFERENCE:                   Iran
MEMBER:Nicole Burns
DATE:13 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 May 2019 at 12:41pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Circuit Court remittal – religion – conversion to Christianity in Australia – suspicion as to the applicant’s motives – non-practising Muslim – Azeri ethnicity – consumption of alcohol – participation in anti-government demonstrations – failed asylum seeker returning from the west – credibility concerns – mental health concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations (Cth), Schedule 2
CASES
ADZ16 v Minister [2016] FCCA 3246
MIAC v SZQRB [2013] FCAFC 33
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant left Iran on [in] June 2012, flew to [Country 1] and boarded a boat, arriving on Christmas Island [in] July 2012. He claims to be an Iranian national and provided to the Department of Immigration (the Department) a copy of his Iranian national identity card. Given this, and the fact the delegate accepted the applicant’s claimed nationality, the Tribunal finds the applicant is a national of Iran and has assessed his protection claims accordingly.
The applicant applied for the visa on 15 November 2012 and the delegate refused to grant the visa on 9 January 2014. The Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant a protection visa on 9 December 2015. The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by the Federal Circuit Court [in] April 2017.
The applicant appeared before the Tribunal on 19 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Pastor [A] from [Church 1], Persian ministry. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review by his registered migration agent. He attended the Tribunal hearing.
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, the applicant is either a person in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 1709089 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 5863
Decision Date: 13 May 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a man from Tehran, Iran. The applicant claimed he feared serious harm upon return to Iran due to his conversion to Christianity in Australia, his consumption of alcohol, past participation in anti-government demonstrations, and his status as a failed asylum seeker. The decision under review was made by the Administrative Appeals Tribunal, which had affirmed a delegate's refusal of the protection visa. The Federal Circuit Court had previously remitted the matter to the Tribunal.

The primary legal issues before the Tribunal were whether the applicant would face a real chance of suffering significant harm or serious harm upon return to Iran, and whether any such harm would be inflicted by the Iranian authorities or by persons or groups whom the authorities were unable or unwilling to protect him from. The Tribunal was required to assess the applicant's credibility, considering various aspects of his account, including his alleged religious conversion, his past behaviours, and his mental health.

The Tribunal considered the applicant's claims in light of the evidence presented, including statutory declarations and written submissions. It noted that the applicant had not raised current mental health concerns at the Tribunal hearing and that there was no contemporaneous medical evidence to support his claimed diagnoses. While acknowledging the applicant's reported mental health issues, the Tribunal was not satisfied that these explained the numerous credibility concerns it identified with his evidence. Furthermore, the Tribunal was not convinced that his mental health problems were so severe as to place him at a real risk of serious or significant harm on return to Iran. The Tribunal found a number of credibility concerns with the applicant's account, including inconsistencies and a lack of corroboration for key aspects of his claims, such as his alleged arrest for drinking alcohol and subsequent rape while in Basij detention.

The Tribunal affirmed the decision to refuse the protection visa, finding that the applicant had not established that he would face a real chance of suffering significant harm or serious harm upon return to Iran.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant did not mention any current concerns about his mental health at the Tribunal hearing and the Tribunal was satisfied as to his capacity to give evidence based on him responding to questions in a lucid way and engaging in the hearing over a few hours. No contemporaneous medical evidence has been provided about the applicant’s original diagnosis (in 2015) or current presentation. The Tribunal is not satisfied that the applicant’s problems of adjustment disorder and/or post-traumatic stress disorder and depression, as identified in the report from [Mr B], explain a number (and variety) of credibility concerns the Tribunal has with his evidence, addressed where relevant below in relation to his specific claims. Nor is the Tribunal satisfied that his mental health problems are so severe as to result in him facing a real chance of serious harm or a real risk of significant harm on return to Iran in the foreseeable future.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a [age] year old man from Tehran, Iran who claims to fear serious harm on return there on multiple grounds. That is, he fears serious harm from the authorities as a Christian convert; as someone who drinks alcohol; as someone who participated in anti-government protests in the past; and as a failed asylum seeker returning from the west. It is submitted that in the past he experienced a number of problems from the authorities (and the Basij) in Iran because of behaviour considered ‘un-Islamic’, detailed further below. The applicant set out his claims initially in a statutory declaration that accompanied his visa application dated 1 November 2012. In it he states that he participated in three demonstrations against the regime and was arrested in relation to a demonstration in [location] but was released. He states that 10 days before fleeing the country he was arrested by police whilst buying alcohol in the park, beaten, interrogated at the police station, and detained for two days. His [relative] secured his release after providing a deed of his business as guarantee and a few days later a person came to the applicant’s house to serve him a summons. The applicant provided a further statutory declaration dated 26 June 2015 to the first Tribunal in which he elaborated upon his background and claims. Two written submissions were provided to the first Tribunal, dated 28 Mach 2014 and the other undated (received prior to the hearing on 22 October 2015). In his June 2015 statutory declaration the applicant describes four altercations with the authorities in Iran that led to his decision to leave, summarised as follows:i.In 2010 he was arrested and severely beaten for being present at a protest in the aftermath of the 2009 presidential election.ii.In late 2010 he was arrested for walking next to his girlfriend and beaten while under arrest.iii.In 2011 he was arrested for consuming alcohol and then severely beaten and raped while being in Basij detention.iv.In 2012 he was arrested, beaten, detained and interrogated for drinking alcohol in public and proposing to sell alcohol during a religiously sacred time.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.