1710327 (Refugee)
[2018] AATA 1321
•1 May 2018
1710327 (Refugee) [2018] AATA 1321 (1 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1710327
COUNTRY OF REFERENCE: Iran
MEMBER:Louise Nicholls
DATE:1 May 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 01 May 2018 at 2:23pm
CATCHWORDS
Refugee – Protection visa – Iran – Social group – Breached Iranian social mores – Affair with a married woman – Political opinion – Expressed anti regime political opinions – Minor Green Movement supporter – Confrontations with the police – Social media posts – Religion – Interested in Christianity – Considered an apostate – Failed asylum seeker – Returnee from the West – Second named applicant
LEGISLATION
Migration Act 1958, ss 5, 5J , 5K -5LA, 36, 65, 438
Migration Regulations 1994 Schedule 2CASES
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
SZSSJ v MIBP [2015] FCAFC 125Any 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
The applicants are father and daughter. They claim to be citizens of Iran and arrived by boat in Australia on 15 November 2011. The applicant father ([age] years) is the primary applicant (“the applicant”) and he is seeking a protection visa on the basis that he will face serious and significant harm if he returns to Iran. He acts on behalf of his [age] year daughter (the applicant daughter) and her claims were initially based on her being a member of his family unit. However, as a result of evidence provided by the applicant at the Tribunal hearing, and submissions made by the applicants’ representative, the applicant daughter has also claim she will face a risk of serious and significant harm if she returns to Iran and the Tribunal has assessed her claims.
Procedural History
On 15 November 2011 the applicants arrived in Australia by boat as unauthorised maritime arrivals.
On 30 November 2011 the applicant attended an entry interview with an officer of the Department of Immigration.
On 20 January 2012 the applicants applied for a Protection Obligations Assessment. On 24 January 2012 the applicant attended a Protection Obligations Evaluation determination interview with an officer of the Department.
The delegate found on 28 February 2012 that the applicant did not meet the definition of refugee and as a consequence, the claims were referred for review to the Independent Protection Assessment Authority (IPAO) on that date. After considering the claims made by the applicant, the IPAO assessor found that the applicants did not meet the criteria for protection visas and recommended that the applicants not be recognised as persons to whom Australia has either protection obligations or a member of the same family unit of such a person.
On 5 September 2014 the applicant was advised by the Department that he had potentially been affected by the “data breach”[1] and was invited to make submissions on whether the data breach had any impact in his case. The applicant responded to the invitation by stating that he came to Australia as he did not have any safety in Iran and after he arrived he became interested in Christianity and converted. All his personal issues were before the court and he was assured that his case would be confidential but his case was presented on the website. He claimed that everyone now knew about his personal issues and even his family did not wish to accept him. The applicant stated he still had uncertainty about his future which affected his mental health.
[1] [1] During February 2014 personal information concerning numerous individuals held in detention on 31 January 2014 was inadvertently made available through the Department’s website.
On 3 July 2015 an officer of the Department undertook an International Treaties Obligations Assessment (ITOA) and found that the applicants were not persons to whom Australia had non-refoulement obligations.
On 21 April 2016 the applicants were invited to apply for Temporary Protection Visas (TPV)(subclass 785) or Safe Haven Enterprise Visas (SHEV) (subclass 790).
On 28 October 2016 the applicants applied for Safe Haven Enterprise visas.
The applicant provided a statement made on 19 October 2016 setting out his claims as well as a number of [social media] entries for the previous 3 years.
The applicant attended an interview with the delegate on 5 April 2016. Following the interview the applicant’s representative provided written submissions and a copy of an unrelated decision made by a reviewer in the Immigration Assessment Authority (IAA).
On 27 April 2017 the delegate of the Minister for Immigration refused to grant the SHEV visas under s.65 of the Migration Act 1958 (the Act). The delegate found that the applicants were not persons of whom Australia had protection obligations as set out in s.36 (2)(a) or s.36(2)(aa) of the Act.
Review
This is an application for review of the decision made by the delegate to refuse to grant the applicants protection visas. The application for review was made on 15 May 2017.
The Tribunal has before it a number of Departmental files:
·File number BCC [file number 1]. This file contains the current application for protection and associated documents. There are no certificates restricting disclosure of any documents on this file.
·Files no CLF [file number 2] and CLF [file number 3]. These files relate to the earlier applications for protection and the consideration of those applications by the Department. File no CLF [file number 2] has a certificate issued pursuant to s.438(1)(a) of the Act which restricts information in folios 50 and 51 of that file. This certificate states that disclosure of the information would be contrary to the public interest because it contains documents or information containing confidential investigative methodology and techniques used to determine the outcome of the examination. The subject document is a document examination report prepared by the Department in relation to the applicant’s Iranian driver’s license. The conclusion drawn from the examination is that the driver’s licence was a legitimately manufactured document personalised in the expected manner.
·File no CLF [file number 4]. This file relates to an investigation of the applicants’ identity and nationality and a certificate issued pursuant to section 438 (1)(a) restricting information in folios 18 to 20 and 22 to 25 has been placed on the file. Folios 18 to 20 relate to the document examination of the applicant’s Iranian driver’s license referred to above. Folios 22 to 25 contains a document examination report which examines the applicant’s Iranian identity card, two shenasnamehs (birth registration documents), a further identification card and an unknown document containing foreign script. The report finds that the first three documents are legitimately manufactured documents with no alteration. No opinion can be given to the authenticity of the last two documents.
·File number CLF [file number 5]. This file contains a status resolution support services program form. There are no relevant documents on this file.
·From number OPF [file number 6]. This file contains a series of emails between departmental offices which are not relevant to this review.
The applicant has given the Tribunal a copy of the delegate’s decision refusing the application for SHEV visas. The applicant also provided the Tribunal with written submissions made on 1 December 2017, a copy of an archived history of the applicant’s previous names on [social media], a copy of submissions made to the Department on 21 April 2017, a copy of a decision in an unrelated matter considered by the Immigration Assessment Authority and a copy of [social media] extracts previously provided to the Department by the applicant to support his claims.
The applicant and the applicant daughter attended a hearing on 3 August 2017. The applicant attended a further hearing on 9 November 2017. At the first and second hearings the applicant gave evidence about his background, his current circumstances and his claims for protection. The applicant expressed some frustration and weariness at having to attend a hearing and give evidence when he had already attended a number of interviews over the years. The Tribunal pointed out that his application for SHEV visas had been refused and he had sought review of that decision. Given that a decision could not be made on the material before it the Tribunal was obliged to invite the applicant to attend a Tribunal hearing and seek further information.
The manner in which the applicant gave evidence was rambling, lacking in focus and he often digressed into topics of interest to him which were not entirely relevant to the line of questioning put to him by the Tribunal. The Tribunal has set out the substance of the applicant’s evidence below noting that it was difficult to unravel those matters relevant to the applicant’s background and claims from his reflections on his state of mind and matters of general interest to him including the state of world politics, the invasion of Syria and the essential cultural and ethnic differences between Persians and Arabs from the Middle East.
At the first hearing the applicant’s representative requested that the applicant daughter also give evidence. She told the Tribunal about her life in Australia at that hearing; she did not attend the second hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant and applicant daughter meet the refugee criterion and, if not, whether they are entitled to complementary protection. If the Tribunal finds that one of the applicants meets either criterion, the Tribunal must consider whether the other applicant is a member of the applicant’s family unit.
The relevant law is set out in Attachment A.
Non-disclosure certificates –s.438 of the Act
The Tribunal has considered the non-disclosure certificates placed on the Department’s files as a preliminary issue.
The applicant provided the Tribunal with a copy of the delegate’s decision which noted that the documents referred to in the document examination reports had been assessed and no adverse findings had been made. Thus the applicant was aware of the conclusions drawn from the documents at the time he applied for review.
The Tribunal discussed the existence of the non-disclosure certificates referred to above with the applicant at hearing. It outlined the nature of the restricted information and disclosed the conclusions drawn from the document examination reports referred to above, being that, the identity documents provided were either genuine documents or that no conclusions could be made as to the authenticity of the remaining two documents. The applicant and his representative did not make any submissions as to the validity of the certificates referred to above.
The non-disclosure certificates refer to a claim of public interest immunity on the basis that the documents contain confidential investigative methodology and techniques used to determine the outcome of document examination. The Tribunal considers that the certificates are valid and that public interest immunity operates to prevent the disclosure of the full document examination reports on the basis that the disclosure could reveal confidential investigative methodology and techniques and prejudice the Department’s ability to detect fraudulent documents in the future.
However, the conclusions drawn from those reports have been disclosed to the applicant by the delegate and the Tribunal. The information in the full reports is not adverse to the applicant. It supports the applicant’s claims as to his identity and those claims are accepted by the Tribunal. The material does not result in a loss of opportunity to advance the applicant’s case. The material in the full reports does not prejudice the interests of the applicant and does not undermine his prospects of a favourable decision by the Tribunal[2].
[2] Minister for Immigration and Border Protection v CQZ15 [2017]FCAFC 194 at 72
What is the country of reference?
The applicant claims he was born in Iran and is a citizen of Iran. He provided a number of identity documents to the Department which have been examined and accepted as genuine identity documents. He has consistently claimed that he is Iranian and at the hearing he spoke the Persian language fluently and was familiar with the geography and culture of Iran. The applicant stated that his daughter was born in Iran and accompanied him to Australia in 2011. The nationality laws of Iran provide that a child acquires his or her nationality through their father’s nationality.
Taking into account the available evidence the Tribunal is satisfied that the applicants are Iranian citizens and that Iran is the receiving country for the purposes of s.36(2)(aa) of the Act.
Background
The applicant is [age] and was born in the Ahwaz (Khuzestani) region of Iran[3]. He is of Persian ethnicity and grew up in a family which followed Shia Islam. His father lives in Ahwaz and is [retired]. His mother passed away when he was [age] years of age and his father remarried and is currently living with the applicant’s stepmother. The applicant has [several siblings].
[3] Khuzestan Province is located in the south west of Iran and has a mixed Arab and Persian population. Taheri, A 2007, ‘The Revolt of Arab-Iranians’, Arab News, 25 August
The applicant attended school in Ahwaz and left school when he was [age] to [age]. He completed 21 months of national service when he was [age] years of age and claimed that he was posted in the disciplinary section of the police force during his national service. When he completed his national service he worked in a [company] for a few months and then had a car accident and was not able to work for some time.
When he was about [age] years of age he borrowed money from family members and opened a [club]. The applicant married when he was [age]/[age] years of age and his wife was his business partner at the [club].
He and his wife lived in a rented apartment in [Town 1] but their marriage broke down due to problems with other members of his wife’s family. The couple had one daughter, the applicant daughter, and when the couple separated she lived with the applicant. The applicant and his wife divorced when he was [age] years old and his wife had contact with their daughter one day each week. The applicant daughter lived at the applicant’s family home and his single sisters assisted in the care of his daughter when he was away from the home.
He and his daughter left Iran in October 2011 and arrived in [Country 1] shortly after their departure. They arrived by boat [in] November 2011.
What are the applicants’ claims?
The applicant’s claims are set out in his statement of 19 October 2016 and further discussed at an interview with the delegate on 5 April 2017 and repeated in submissions made by the applicant’s representative to the Department on 21 April 2017 and to the Tribunal on 1 December 2017.
The applicant gave oral evidence regarding his claims at Tribunal hearings held on 3 August and 9 November 2017.
Essentially the applicant claims that if he returns to Iran he faces serious harm because; he has expressed anti regime political opinions, his previous involvement with a married woman in contravention of social mores, his renunciation and rejection of Islam, as a failed asylum seeker, a returnee from the West and a political prisoner. He claims that due to his adverse history in Iran and his anti-regime social media posts he will face interrogation, detention and mistreatment upon his return to Iran. He also claims that there is a real risk that both applicants will suffer significant harm if they return to Iran.
Whilst initially the applicant daughter made no claims of her own for protection, the applicant gave evidence in the Tribunal hearing on which claims based on religion may clearly arise. Further the applicant’s representative’s submissions include a claim that the applicant daughter will not be able to re-absorb into Iranian society and will suffer significant harm for that reason. The Tribunal has considered those claims as part of its consideration.
The statement made on 19 October 2016
Tthe applicant stated that he left Iran because he had an affair with a married woman named [Ms A]. He claimed she was one of his [members] at his [club]. He claimed he met [Ms A] around July 2011. They were attracted to each other and they started seeing each other outside the [club].
He claimed that [Ms A] told him she was divorced and living with her mother. They used to meet at his rented house about every second day and they had sex. They spent a few hours together when he was on break from the [club]. He normally lived at his family home because the applicant daughter was there and his sister looked after her.
On the day he fled Iran in October 2011 he had finished [work] at about mid-day and stayed back for a short while as he did not want to be seen leaving with the women. He heard knocking and opened the door to see three bearded men in suits and a government car parked outside. He ran to the back door and escaped. A short time later [Ms A] called him and told him her husband had found out about the relationship and she was planning to run away and he should do so as well. She confessed she was married to a senior cleric who had organised a raid on his [club] by plain clothes officers. They were also tracking his mobile telephone.
He went straight to a travel agent and also called his brother in law who was [a government official]. His brother in law agreed he should leave the country and that he would help him.
He purchased a ticket for [Country 1] and after travelling from Ahwaz to Tehran by plane he and his daughter left for [Country 1] that night. Once in [Country 1] he arranged to board a boat for Australia. He has never spoken to [Ms A] again despite trying to call her mobile from Australia.
He claims that if he had stayed in Iran he would have faced serious mistreatment as men who have sexual relations with the wives of important men often face the death sentence.
The applicant claimed he has turned away from Islam and has been baptised into a Christian church. He claimed that he abandoned Islam at the time he did his national service. He did not tell anyone at the time and his non-conformist attitude has been an ongoing problem for him. He claimed that problem was worse for him because he lived and worked in the Ahwaz region where enforcement of Islamic rules is carried out zealously by the Basij[4].
[4] The Basij is a unit of the Iranian Revolutionary Guard Corps described as ‘a special organization with the specific objective of confronting political and cultural threats against the regime’. The Basij were granted police powers in 2005. It is a paramilitary volunteer force that operates under the IRGC’s command.( Freedom House 2012, Countries at the Crossroads 2012 – Iran, 20 Sept ;US Department of State 2013, 2012 Country Reports on Human Rights Practices – Iran, 19 April.)
He claims that he and his former wife were confronted by the Basij when some of his former wife’s hair was showing when they were out on the street. He also had confrontations with the Basij for his clothing. He was once sentenced to lashing for playing cards on a holy day but avoided the lashing through the intervention of his brother in law. He also allowed women [in] his [club] which contravened Islamic mores. He could not open the [club] on [Fridays]. He stated he was not permitted to play music in the [club] and once when he played music the Basij came around and beat him.
He claimed that he has now embraced Christianity.
He stated that he has a [social media] page in which there are many entries against Islam. He has copied these criticisms from other sources. He has friends who share posts on [social media] and he has a lot of anti-regime posts on his page. He claimed these could be accessed by authorities in Iran.
In February 2014 the applicant’s details were disclosed on their website including his daughter’s details. The Iranian authorities will be aware the applicant is in Australia seeking asylum which will cause problems for the applicant if he returns to Iran.
He claimed he had been a supporter of the Green Movement and took part in several demonstrations in 2009. He put up posters in his [club] around election time in 2009 and the Basij came around and pulled them down. There was a fight in which some of his [members] became involved. The Basij took him away but his brother in law intervened and he was released.
He claimed that he feared he would be mistreated by the Basij or other authorities if he returned to Iran. He also fears he will be detained, interrogated and tortured as he has sought asylum in a Western country. This could place him in a dangerous situation in Iran as the Basij are looking for him and the authorities know he has turned against Islam and become a Christian. Due to his [club] he is known as a person who has contravened religious rule and who is opposed to the Iranian regime.
He claimed that the election of Hassan Rouhani in 2013 made little difference to the situation for political dissidents in Iran. The applicant claimed that the continuing arrests, interrogation and detention on suspicion of opposition to the government causes the applicant to fear return to Iran.
The applicant’s interview with the delegate on 5 April 2017.
The applicant repeated earlier claims that he had an affair with the wife of a cleric in Iran. The delegate put it to him that previously he had been asked how he was able to leave Iran lawfully using his passport without encountering any problems from authorities if he was wanted in relation to an illicit affair.
The applicant stated that he had obtained his passport from someone he met at a wedding who worked for the government. He stated that the passport took about 10 days to issue. The delegate noted that he had previously claimed that the issue of the passport had taken about one month and that at the time he applied he thought he would go overseas at some stage but had no specific plans to leave at the time he made his application. He stated he could not remember what he had previously stated.
The delegate put it to the applicant that he accepted he may have participated in protests during the Green Movement in 2009 but that his involvement was low level and did not create an adverse profile.
The applicant stated that Islam was the main reason he left Iran. He also claims he has converted to Christianity.
During the interview the delegate noted
·He could not satisfactorily explain his motivation for conversion.
·He stated he had no information about Christianity.
·He did not know which denomination of Christianity he followed.
·He stated he converted a few years before his interview but could not recall the exact time. He told the delegate he had not shown his baptism certificate to anyone.
·He did not provide a copy post interview.
·He claimed he used to attend church regularly but did not have much time because of other obligations. He had not attended for a few years.
·When questioned about how he became aware of Christianity he stated he has heard a lot of friends at the [club] talk about Christianity but then told the delegate that his friends spoke in English so he could not answer any further questions about Christianity.
·He stated that his family found out about his conversion from people in the Iranian community in Australia but when questioned as to whether these people were acquainted with his family, he stated he is sure they knew them but they act as if they do not.
The applicant claimed he feared harm because of anti-regime [social media] posts he had made from approximately 2014. The applicant provided copies of his [social media] posts to support his evidence. When asked why he made these posts he stated he was motivated by hate. He stated he first opened his profile [in Australia] and then closed it and reopened it later. The delegate noted that his profile was in the name “[Alias 1]” and the posts were limited to his friends. He stated that Iranian intelligence was strong and had the capacity to hack into the Department’s website. He claimed that his account was previously in his own name, however, he changed it one to two years ago.
The applicant’s representative’s submissions 21 April 2017.
The applicant’s representative made submissions on the applicant’s claims and the matters discussed at the delegate’s interview. He stated the applicant continued to rely on all evidence and submissions previously made by the applicant.
With respect to the applicant’s manner at interview he noted that the applicant arrived in Australia in 2011 and has been interviewed by a number of different officers over that period of time. The representative submits this has had a negative impact on his mental health resulting in him being confused in his recollection of events that happened over six years ago and unable to properly respond to the questioning.
He reiterated that the applicant claimed to fear harm for reasons of
·His renunciation of Islam and his conversion to Christianity. He claimed that the applicant will be considered as an apostate.
·An imputed political opinion opposing the Iranian regime as someone who participated in Green Movement protests in 2009 and has undertaken anti-government activities in Iran and in Australia.
·Membership of a particular social group of failed asylum seekers and political prisoners in Iran.
The representative submitted that the applicant had recently advised him that he had been using [social media] to regularly post anti regime material since he arrived in Australia. He provided the Department with copies of some postings. The applicant stated he had not disclosed his earlier use of [social media] because he had not been asked. He stated the account was originally in his name and he then changed it to [Alias 1] one to two years ago. He submitted that Iranian intelligence have sophisticated systems which would have been able to ascertain the [social media] account was the applicant’s particularly given his level of criticism.
The representative referred to the data breach and submitted that despite the fact that only personal details had been disclosed that Iranian authorities would be able to ascertain the identity of the author of the anti-regime [social media] posts.
The representative invited the Department to consider the decision of an IAA reviewer in an unrelated case with a similar factual situation. He pointed to the similarities in the submissions.
The representative stated that the applicant first converted to Christianity after he attended [an Ethnic community 1] Church in [Australian Suburb 1] and then started attending the Iranian church in [Suburb 1]. With respect to the deficiencies in the information given to the delegate he explained that the applicant did not overstate his knowledge of the tenets of the Christian religion. He admits his knowledge is rudimentary. He also stated that was motivated to become a Christian because many of his friends had converted and he found members of the Church community to have been very supportive.
The representative also submitted that a large part of his motivation was his hatred of Islam. He claimed that his antipathy is confirmed on his [social media] postings. The applicant’s conversion would be regarded as apostasy which is a serious offence in Iran. The representative also provided some extracts of country information relating to the treatment of apostasy in Iran.
With respect to his claim as a failed asylum seeker he submitted that the failed asylum seekers would be under suspicion for anti-government activities or opinion. He submitted that returning to Iran after over 5 years in a Western country would increase his chances of being subject to serious harm. It is also submitted that if the applicant was imprisoned he would face serious harm due to harsh and life threatening conditions. He will also not be able to access state protection as he fears harm at the hands of state authorities.
The representative also submitted that the applicant was entitled to complementary protection on the basis that there was a real risk he would face imprisonment in Iran and that prison conditions are such that he would face torture, cruel, inhuman or degrading treatment or punishment if he returned.
The Tribunal hearing held on 3 August 2017
At the Tribunal hearing the applicant provided his background details which are set out above.
He stated that when he was [age] years of age he opened a [club] in a suburb of [Town 1], a suburb of Ahwaz City located in Khuzestan Province[5]. His family provided him with funds to commence the business.
[5] Also referred to as Ahwaz.
He obtained [an operational] licence and rented a local property. Before he started his business the local engineering and safety authorities checked the building and he had to submit a business plan to obtain a licence. He was the operator [but] he also needed a person who had higher education to be involved as manager, so his brother in law was included as a manager. This was a formality. His brother in law and sister purchased [fitouts] from Karaj for the [club]. [Sentence deleted]. He changed the location twice but remained in the same street. They [club] operated for six years from 2004 to 2010.
He told the Tribunal he faced many problems in running the [club]. He claimed that Iran was not supportive of [clubs]. He stated that the [club]’s neighbours were religious and did not approve of attendees [attending the club]; they thought these things were not Islamic.
He was once taken to court and his [club] was shut down by government because the music he was playing at the [club] was playing during the call to prayer. He stated this was just an excuse made by his religious neighbours as the [club] had been sound proofed and had special flooring.
On another occasion one of his neighbours came to the [club] entrance and smashed the glass in the door. Her daughter had come to the [club] to talk to his girlfriend (later his wife) about attending [the club activities]. Her mother did not approve and complained and the police came and took him to court. He claimed that his neighbours made a deal with each other to frame him. He stated all his problems were caused by religion. He was frustrated at the time because he was planning to get married the next year and was saving for the marriage.
The applicant was [age] years old when the [club] opened and he married when he was [age]years old. He married in 1384 (2005 in Western calendar). His [daughter] was born a year later. The couple lived in a rented apartment near the [club].
[Paragraph deleted].
He and his wife divorced in 2010. He referred to his shenasmaneh (family registration card) to confirm the date. When asked why the marriage broke down he stated that his wife’s family were involved in a number of criminal activities. His family had different moral principles and he did not want to get involved in these criminal activities.
He found out after he married that his brother in law was involved in [crime]. He claimed he loved his wife but was afraid of her family and did not want his daughter in contact with them. He stated that two of her brothers were involved in [crime]. [Sentence deleted]. They gave his wife money but he objected to being given this money.
[Details deleted][6] [Details deleted].[7] [Details deleted]. This incident took place before he divorced his wife in 2010. On another occasion one of her brothers fired a gun at him during a disagreement.
[6] [Source deleted].
[7] [Source deleted].
He tried to get his wife out of this type of life but she was the only daughter in the family and she realised that she could not extricate herself from her family. She told him she would not separate from her family.
He stated they loved each other very much and had lengthy conversations about the situation but he wanted [another way of] life and her family’s lifestyle was not for him. He told his wife they had the [club], he owned a [service] business and he also sold [imported goods] he bought from [Country 2] and they did not need the brothers’ s illegal gains.
In order to have a healthy relationship he stated it was best if they separated and they mutually agreed on a separation and then later on a divorce. He claimed his wife loved him and accepted her own family was problematic. He loved his wife and respected her but thought they should separate.
The only problem the couple had was the residence and care of their [age] year old [daughter]. On one occasion he visited his wife’s family home when it was being attended by police, the Basij and other authorities. His brother in law and girlfriend had been accused of being involved in [crime]. His daughter was scared and he did not want his daughter to have contact with the family. In the end his wife agreed that she would just take her for one day a week because his wife knew her family had problems.
Thus it was agreed his daughter came to live with him. He had [sisters] who were single and they helped him care for his daughter. At that time two of his sisters were [in a certain role]; one worked in the morning and the other in the afternoon so they could swap.
The applicant gave evidence that he closed his [club] in 2010 because of continuing complaints made by his neighbours and problems with the local government. He put an advertisement in the paper and sold his [club] [fitouts] in 2010.
When asked where he worked after closing the [club], he first stated that he was working for about 2-3 years for [Company 1] before he left for Australia. He described his work as a representative of [certain] [contractors]. He provided an employee card which showed he worked for [Company 1] as a representative for [certain] services. He found this job through the help of one of the members of his [club].
When asked to confirm how long he had worked for [Company 1] he stated he could not remember and then stated it was from about the time his [club] closed. He then stated that he attended [Company 1] at about 4am in the morning and punched his card and went backwards and forwards between the [club] and [Company 1] work. His [Company 1] work involved him in going to different places and checking the workers and [equipment]. His work was close to the [club]. After reflection he estimated he worked for [Company 1] for about 16-17 months.
When asked to clarify what work he did before he left Iran he stated he operated the [club] for six years and sold the [club’s assets] in 2010. He also worked for [Company 1] and also purchased [work equipment]. He could not remember precisely when this all took place.
When pressed on what he was doing immediately before he left for Australia, he claimed he was working for [Company 1] but he cleared all his financial matters and told them he was leaving for Australia. Also in the last few weeks before he left he worked as a [driver]. To obtain this work he went to a [recruitment] agency and provided his details and worked in this job for a short time before his departure.
As an afterthought he claimed he also did some part time [work] for the person who purchased his [club].
He left Iran with his daughter in October 2011 and arrived [in Australia] in November 2011.
The Tribunal asked him why he left Iran.
He stated he met a woman named [Ms A] in his [club]. He then corrected himself and stated he was working in the other person’s [club] at the time they met. He and [Ms A] became attracted to each other and had a relationship for about 3 months.
He stated that he divorced his wife in 2010 and needed another woman. He claimed that she told him she was married towards the end of the three months. He was not a religious person so he was not too concerned. However, her husband found out and the police came to the [club]. He stated that the police officers were in plain clothes but he recognised that they were police from the number plates. He was familiar with the type of number plates disciplinary police had from his time in national service. The undercover police came to the front door of the [club] and he ran away from the [club] through the back door.
At this point he was despairing; he could not have a relationship with [Ms A], he had a young child, his former wife’s family were wild and he was sick and tired of religion. Even his own brother would not let him listen to music at home. He decided to leave Iran.
The Tribunal put it to him that he stated that he had [interacted with] [Ms A], however earlier he stated men and women could not mix in the [club]. [Details deleted]. The female [members] paid him a large amount of money for the [membership]; it was risky but worth the risk.
When the Tribunal asked him to explain how he came into contact with [Ms A] he stated that many things had happened in Australia and his memory was not good. He cannot be precise. He had suffered depression and had been taking [medication] for a while. He wanted to forget everything. He stated he wanted a girlfriend and wanted to continue his [club] business, he had a [age] year old daughter and no one to cook for them.
When questioned about the relevance of these issues he stated he was trying to explain that once he arrived in Australia he faced many problems which have caused him to have problems with his memory.
With respect to his contact with [Ms A], he stated that all he remembered was the he had a relationship with [Ms A] [in] the [club]. The police came to the [club], he found out by looking through a crack in the door, he ran away through the back door, he caught a cab and went straight to the travel agent. Whilst in the cab he talked to his brother in law. He stated the travel agent was in the area of [Town 2], a suburb of Ahwaz[8] well known for people smuggling and other illegal activities.
[8] Google Maps Ahwaz City is located in Khuzestan Province.
When questioned further he stated he does not know how he saw the green front licence plate through the crack of the door. He saw two cars and in any event he was physically involved with them and hurt his back and knee as a result of the altercation. He ran inside the [club] and went out through the back door and caught a cab. He claimed that [Ms A] told him her husband was one of the ayatollahs but he could not remember when she told him this.
He claimed that he was on his way to [Town 2] and remembered he needed to collect his daughter’s passport. He claimed that when he was asked in his entry interview why he obtained a passport for his daughter he stated they wanted to go to [Country 3]; but this was not correct and this was used against him.
When the Tribunal asked him about his daughter’s passport he initially stated he did not remember when he applied for her passport; it was some time before their departure. He then stated that as soon as he got the tickets for [Country 1] he went to the post office and pleaded with them to give him his daughter’s passport. He claimed that it had arrived at the post office on the same day as he bought the air tickets. He told the post office he needed the passport in a hurry, that he had problems and wanted to go to Australia. He offered a bribe and they took the passport out of storage and gave it to him.
The Tribunal put it to him that he had applied for both his and his daughter’s passports before he claimed that police attended his home. He stated that at an earlier point in time he had given up hope and had decided to go to [Country 4]; He had a friend in [Country 4]. He stated that at the time he was also living in his father’s home and had problems with his former wife. He also stated that a large number of people from his area had gone to Australia so he decided to apply for a passport.
The Tribunal discussed country information indicating that there was a large outflow of young male Iranians in 2010 to 2012 due to poor economic and employment conditions in Iran[9]. He stated he had no financial problems; he had bought [work equipment] and some expensive furniture. He also had a business selling [imported goods] which involved large amounts of money. He stated that these goods were imported illegally because they were produced [overseas]; nevertheless, he had a contact who supplied him with the [imported goods] and he made good money from this business. He stated that if he wanted to leave Iran for economic reasons he would have done so much earlier. He stated his sister owned [a property] in Ahwaz which was recently [sold]; she offered to provide financial support for him in Iran but she recognises he will have problems if he returns.
[9] Iranian Refugees An exploration of irregular migration to Australia, Farsight, April 2015 p 5,7,8,
He stated that he and his former wife had initially lived in a rented property near his [club] [but] he handed this property back to the landlord so that he could use the refund of part of the lump sum rental money to buy [work equipment]. He and his wife then stayed in one room of the [club] but his wife was not happy with this so they moved to the home of his father. His father and the rest of the family lived in a suburb called [deleted]. His daughter and his father’s young daughter used to fight so the applicant and his former wife decided to rent another property [which] was a suburb located near his [club]. That was the property he and his wife occupied immediately before their separation and divorce. When he left Iran he left the furniture for his former wife.
The applicant told the Tribunal that he and [Ms A] saw each other two to three times a week.[Sentence deleted]. He claims they conducted their relationship at his rented apartment [in] 2011. He and his former wife had divorced in 2010 but he still had access to the apartment as the lease had not run out at that time. He explained it was a lease where a lump sum was paid initially and the lease term was fixed for that period. He and his former wife had left furniture in the apartment after the divorce and both retained a key. Whilst he lived with his [unmarried] siblings he claimed he saw [Ms A] at the apartment from time to time.
He claimed he found out that [Ms A] was married the same day the police came to the [club]. Shortly after that he bought the air tickets as well as talking to a friend and arranging to sell his car for cash. He needed the money from his car because when he ended his employment with [Company 1] he did not have enough time to get back pay.
He left Tehran late that night with his daughter. They stopped in [Country 2] then flew on to [Country 1]. Then he found a people smuggler and arranged boat passage. His sister deposited funds into the people smuggler’s account for the boat passage.
The Tribunal asked the applicant how he could have escaped three police officers and he claimed he was very fit, good at martial arts and a fast runner.
The Tribunal asked him to confirm his account of events as; the police attended the [club] after 12 noon, the applicant became involved in a physical fight with the three police officers, he escaped through the back door of the [club], he caught a cab and spoke to his brother in law whilst in the cab, collected his passport, he travelled to [Town 2] district in Ahwaz, he attended a travel agent and bought two airline tickets for a 6 to 8pm flight from Ahwaz and ongoing flight to [Country 1], he attended the post office and arranged for his daughter’s passport to be released to him, he sold his car for cash, attended the bank and then travelled to the airport in Ahwaz, caught a plane to Tehran and then later in the evening caught an international flight to [Country 1] via [Country 2] all on the same day of the police attendance at the [club]. He stated he had been very quick in organising his affairs. He had to be quick to make sure he was not prevented from leaving Iran.
The Tribunal asked him when he picked up his daughter. He stated that his daughter was spending the day with his married sister and attending a birthday celebration for his niece or nephew. His wife told him she missed her daughter very much and wanted to pick her up that day but he told her to come another day. When he went to his married sister’s home his daughter was in her party clothes so his sister gave her some outdoor clothes and he took her to the airport with him. He also visited his brother in law [to] say goodbye.
He stated the travel agent advised him to go to Australia because that was where most people were going and there were many people smugglers who could arrange passage. Also the police in [Country 1] were very helpful if they were paid a bribe; even if he left Iran lawfully he would have to pay a bribe. The agent gave him a telephone number for a people smuggler.
The Tribunal put it to him that it appeared that he was planning to leave Iran and it was not a decision he made on that day. He repeated his earlier evidence that he had decided to leave much earlier but then changed his mind. Then when this incident took place he revived his plan. He mentioned that he had two relatives living in [an Australian city] who left Iran in 2009/2010. He could have left at that time if he wanted.
The Tribunal put it to him that it found the evidence he gave claiming an illicit relationship with [Ms A] was difficult to accept and suggested to him that the reason he left was due to problems with his [club] and his neighbours’ complaints. He stated he had problems with the [club] but all his problems related to religion. He stated he was not committed to Islam but had no problems with others practising their faith.
The Tribunal put it to him that many Iranians did not practice Islam in Iran and many were not religiously observant. Other Iranians share his views and are able to live in Iran without problems. He stated that the people in the city in which he was born are not very religious. Many people are well educated but unemployed. The city is located near oil fields and the oil is the source of UK wealth and they took advantage of local people. He is not the enemy of Islam but it does not allow freedom.
He then expressed some frustration with the number of interviews he had attended over the years and the stress he feels as a result of the interviews. The Tribunal noted that he had sought review of the visa refusals and that testing of his claims was part of the review process. It noted that he felt anxious and stressed.
The Tribunal indicated it would adjourn the hearing to another date as the interpreter had another booking and all the evidence had not been discussed. The applicant daughter had been outside the hearing room whilst the applicant was giving evidence, but the representative asked if she could give evidence of her own before the hearing ended.
The applicant’s daughter stated she talks to her mother regularly. She was attending [School] and stated that she enjoyed school. She stated she came to Australia when she was little and likes Australia a lot. She was sad that her mother was not here and she would really like to visit Iran as well but does not want to live there. She would like to go Iran for a visit and is waiting to bring her mother here to live in Australia.
The Tribunal hearing held on 9 November 2017
At the second hearing the Tribunal continued to discuss the reasons the applicant claimed that he feared returning to Iran.
He stated he was not concerned for himself but was mainly concerned for his daughter. He did not want his daughter to be forced to wear the hijab.
He then stated that the applicant daughter told the applicant she has to be a Muslim. When he asked her the reason, she told him she spoke to her mother on the telephone she told her that she had been going to a Christian church. Her mother told her she had to be a Muslim.
He claimed that now his former wife is now his enemy and will take revenge on him if he returns to Iran because she has not seen her daughter for many years. He also claimed he had a certificate from the church and when his daughter was talking to her mother on the telephone she made a copy of the certificate and sent it to her mother.
The Tribunal asked the applicant why, if the applicant had a baptism certificate, he had not provided a copy of that certificate. He claimed that he had the certificate at home but was too scared to bring it to the Tribunal. He claimed he was scared that the information may be disclosed again, referring to the 2014 data breach. He stated that many Muslims were very strict and he could be killed if the information was disclosed, even in Australia. His biggest enemy is his former wife. He is concerned that if a certificate is sent back he might be prosecuted; a certificate would show officially he had turned away from Islam and would be killed.
He claimed that he did not mention his daughter’s attendance at church previously, because he was concerned about the data breach and did not want the information about church to leak out. He claimed he was concerned he may not be able to return to Iran and see his father or have contact if this leaked out. His family in Iran is important to him and he wants to see his father who is old and unwell.
The Tribunal asked him why he had not mentioned his daughter’s attendance at church when he had the interview with the delegate. He stated he did not think it was important to mention her attendance. He stated that once when he did not allow her to go to church she cried a lot; he was not sure if she really wanted to go or just have fun.
The Tribunal asked him why he had provided anti regime [social media] printouts to the delegate if he was concerned at anti regime or religious material being disclosed. He stated that the [social media] material was not an official certificate.
He claimed that he had previously attended a Christian [Ethnic community 1] Church [but] did not attend after he became depressed. He claimed that his daughter attends the Iranian Church in [Suburb 1] but he did not know the name of the church. He claimed the church’s name was in English and was near the railway station and that many Iranians attend this church. He claimed a friend takes his daughter to the church. His daughter told him not to tell her mother that she has attended church. He claimed she enjoys the church activities and they give her gifts but he believes in her heart she is a Christian. However, she does not tell him or her mother. He claimed that in his heart he was also a Christian.
When asked if he had some knowledge of Christianity he stated that in his heart he had faith. He stated the [Ethnic community 1] Church’s services were conducted in English and after he suffered depression he stopped attending church; also they changed the location of the church [to another suburb] which made it difficult. However he stated that the church members helped and supported him and the pastor made him feel comfortable. He could not understand the services but he had faith and a great feeling. He was known as “[Alias 1]” at that church and they prayed for him. He and his daughter liked the [Ethnic community 1] food they served for meals.
He wanted his daughter to learn from Christians and become a Christian because Christians were honest and peaceful. The Tribunal put it to him that a person could be honest without necessarily being a Christian. He acknowledged that a person could be a good person without being a Christian.
The Tribunal told the applicant it had difficulties with his claim that he had genuinely converted to Christianity and that his daughter was a Christian. If the applicant had been regularly attending church it would have expected him to provide some other evidence supporting this claim; his description and understanding of Christian practice was limited and almost non-existent and his explanation for not providing a certificate of baptism to the Department or Tribunal was not reasonable.
The Tribunal put it to him that in relation to his refugee claims that any conduct engaged in by the applicant in Australia is to be disregarded by the Tribunal unless the applicant could satisfy the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. It put it to him that the Tribunal might take the view that any attendance at church was only for the purpose of strengthening his refugee claims and not for any other reason.
He stated he could provide a certificate and the date of the certificate should be noted. He also stated he and his daughter were new converts to Christianity and he wanted to learn English. In his heart he is a Christian and he is still studying. He had been to the [Ethnic community 1] Christian Church and tried to understand the meaning of the Christian religion. He stated he does not go to the Iranian church in [Suburb 1] because he wanted to improve his English.
When asked where he was studying he stated he had been studying Christianity but after he got depression he gave up his studies. The application process has lasted for six years but in his heart he has faith. If things get better he will resume his studies of Christianity. His representative has also asked him to provide his certificate but he has not done so.
If he was identified as a Christian he would face harm in Iran. He claimed he would be identified because his former wife knows he is a Christian and she is one of his worst enemies. She keeps sending him hostile messages and he fears she will take revenge on him if he returns to Iran. He fears his wife more than government authorities. He claimed that one of her maternal uncles is a sheik in the area and he could take action against him if he returned. Her uncle is a prominent figure in Iran and prominent people have power to do anything.
He then stated that at first Tribunal hearing he gave evidence that there were no problems between him and his former wife because his daughter was sitting in the hearing room. However, he and his wife were always fighting.
He stated that his wife was two faced; sometimes she seemed kind and caring and at other times she was threatening. He worries that she will be upset because he kept their daughter away from her for such a long time and that she will report him to authorities.
With respect to his claim that he previously stated that there were no problems with his wife because of his daughter’s presence, the Tribunal put it to him that his daughter was not present in the hearing room when he gave evidence; she was sitting outside. At first he disagreed but then agreed that he may have been mistaken.
He stated that if his former wife wants to be threatening and if she reveals this information to the government of Iran he will be at risk.
The Tribunal asked the applicant about his claim to fear harm as a person who has adopted Western clothes and lifestyle. The applicant then spoke for some time on his reflections about Iranian culture and religion. He differentiated Persians from Middle Eastern Arabs, including those that live in Ahwaz and he discussed attitudes to religion amongst Iranians. He stated that Iranians are open-minded like Europeans.
He stated he would like to have a tattoo but if he goes back a tattoo will cause him trouble. The Tribunal discussed the country information set out in the most recent DFAT[10] report which noted that tattoos are increasingly common in Iran particularly in young people. It observed that there were many male Iranians with visible tattoos and DFAT were unaware of any recent reports of targeting for tattoos.
[10] DFAT Country Report on Iran April 2016 p. 3.77
The applicant referred to his own experiences in “Ettela’at”[11] during his military service in 2010 (Persian calendar1389). He observed many people taken into the Ettela’at office for wearing Western clothes and having a Western appearance. The Tribunal put it to him that country information indicated that attitudes to tattoos have changed since his military service He referred to experiences he and his former wife had when they were first married; they were targeted for dress and appearance issues.
[11] The Iranian intelligence service is called the Ministry of Intelligence and Security (MOIS or Vezarat e Ettela’at va Amniat e Keshvar (VEVAK) Irans Ministry of Intelligence and Security Library of Congress Report December 2012 >
The Tribunal asked the applicant about his claims that he was involved in Green Movement demonstrations. He stated that in his area all the people running [clubs] promoted one of Mousavi’s main supporters. This person organised them as a group to promote Mousavi’s campaign before the 2009 election. He put up a big poster of Mousavi in front of his [club]. The supporters of Ahmadinejad ended up in a fight with him. He stated he used to support Mousavi but now thinks that he was part of the mainstream and was not effective in changing society. He stated that the intelligence services are so strong and he was a small figure in society so he could not do anything.
The Tribunal put it to him that country information in the latest DFAT report[12] indicated that former low profile activists involved in Green Movement demonstrations or activities did not experience any ongoing harassment and could go about their daily lives unmolested.
[12] DFAT Country Report on Iran April 2016 3.67
The applicant complained about the religious conservatism present in Iran, he referred to the conduct of his own brother as an example of a person who had been brainwashed by religious conservatives. He claimed that as a [club] owner he attracted a lot of attention and that religious conservatives were hostile to his [club] activities. Setting up and licensing his [club] had taken a long time and had been quite involved; he was aggrieved that he had to cancel his [club] because of religious differences with neighbours and members of the community. Without his [club] he could not earn a living. The Tribunal put it to him earlier that he had given evidence he had experience [with certain equipment]. He stated that his father was [an occupation] and that he helped him operating his [equipment], as well as [other labourer jobs]. However, it was not his main occupation.
The Tribunal asked the applicant about his claims regarding his social media activity. It put it to him that the extracts he provided were not in his own name and that there was nothing to tie him to any criticism of the government or the Islamic religion. Further there were millions of [social media] posts made every day around the world and the Iranian government did not have the capacity to monitor every Iranian living overseas. He claimed the government authorities were clever and it might be true that normal people would not be monitored he would face a risk because he had been a [club] owner. He claimed that when he first opened a [social media] account it was held in his own name but he changed it later. The Tribunal pointed out that the only [social media] posts he had provided were not in his own name but in the name [Alias 1].
The Tribunal asked the applicant about the claim that the data breach had put him at risk. It noted that only his name, date of birth nationality and detention status had been disclosed for a very short period of time. He stated he fears the Department’s systems will be hacked and his private information will be disclosed. He stated that Iran has a cyber –army which steals information from other countries.
The Tribunal asked the applicant about his claim that he would face harm as a failed asylum seeker from a Western country. It put it to him that it was unlikely that he would be targeted and for this reason alone and that large numbers of Iranians returned to Iran after unsuccessful attempts to claim asylum in Western countries. He stated that many Iranians returned because they missed their families but there was some danger for them. He stated that they probably go to other locations. He stated that some Iranians moved away from Iran for economic reasons but he had other reasons.
He posed the hypothetical question as to why he would come to Australia which was a country which does not have anything and where he observed that unhappy people worked from early morning until night and only talked about tax. He only came to Australia because he had no other choice.
The applicant’s representative made short submissions at the end of the hearing. His submissions were enthusiastic and passionate. He focussed on the applicant’s social media activity and how this would put the applicant at risk of harm. He submitted that the delegate did not give proper consideration to this claim. He referred to a case decided by a reviewer from the Immigration Assessment Authority which discussed some similar issues. He sought further time to make written submissions post hearing.
The applicant’s representative further written submissions made on 1 December 2017
The representative provided an archived history of the applicant’s previous names on [social media], a copy of post departmental interview submissions dated 21 April 2017 and a copy of [social media] extracts previously submitted to the Department on 3 April 2017. The applicant’s representative claimed that the extracts provided to the Department were only a proportion of his overall [social media] activity and that the applicant has been using [social media] to share posts over many years.
The representative noted that at the Tribunal hearing the Tribunal put it to the applicant that the [social media] extracts were all in the name “[Alias 1]” which prevented the applicant from being identified by the Iranian authorities.
He submitted that the applicant’s account on [social media] was opened in the name “[Alias 2]” from February 2012 until [April] 2013, then “[Alias 3]” until October 2016 from when he has used the name “[Alias 1]”. It is submitted that the Iranian authorities could identify the applicant from his previous names on [social media] because there is only a nominal difference in the applicant’s name and [Alias 2]. The applicant also claims that he was known as [Alias 1] to people in his [club] and close friends in Iran as result of him displaying a poster of [a foreign celebrity]. His family were also aware of his nickname. This information along with other information available on [social media] such as his hometown and a list of family and friends could cumulatively be used to easily identify him from the posts under the name [Alias 1].
The representative noted that the Tribunal had put it to the applicant that the Iranian authorities do not have the capacity to oversee all Iranians overseas and particularly those of little interest to them. However, he submitted it is well-known from various sources that the authorities heavily regulate the media and the government continues to suppress free speech and punish public criticism of the regime. He submitted that although the government may not have the resources to monitor millions of Internet users, the authorities do monitor access to sites both within Iran and abroad and anything straying from the official line is deemed to be political and subject to filtering or surveillance. If the applicant was forced to return to Iran he will be persecuted for publication of his anti-Islamic, anti -regime and pro-Christianity material on [social media] which crosses known “red lines”. The risk will be heightened by the fact that he will be questioned upon return after having spent more than 6 years in a Western country
it is submitted that the applicant vented his anti-regime opinions on [social media] which attacked the basis of the Islamic regime along with Christian sentiments. The extracts of his [social media] posts since his arrival in Australia clearly highlight his critical remarks against the government and the supreme leader. He submits that the applicant did not inform his agent of his [social media] activities until specifically asked and this militates against any allegations of him using [social media] to enhance his claim for refugee status.
The representative notes some extracts from the 2016 DFAT report as well as other reports published by various government and non-government agencies. The various extracts demonstrate that the Iranian authorities have the capability to monitor the Internet [and] have done so since 2009. The monitoring includes surveillance of Iranians living abroad. Given the extensive monitoring of social media it is reasonably foreseeable that information posted by the applicant would have been viewed by the Iranian authorities putting him at serious risk of harm in the foreseeable future should he be forced to return to Iran.
With respect to adverse attention on return it is submitted that the length of time the applicant has spent in a Western country together with his anti-regime and anti-Islamic opinions mean he is more likely to come under the intense scrutiny of Iranian officials on return and will be immediately arrested and detained. He claims the authorities will be aware of his return and will have identified him as a person of interest such that he will be detained for investigation. During routine questioning authorities will uncover that the applicant is returning from Australia a Western country where he sought asylum. He submits that should the applicant be forcibly returned to Iran without a passport he will be identified as a failed asylum seeker and will be immediately detained by the authorities. He submits that the applicant will be interrogated, arrested and detained on his return and kept in conditions which would constitute degrading treatment or torture.
There is also a real chance he will be detained interrogated and forced by members of the security forces to provide access to [social media] account and other Internet accounts at the point of return.
It is also submitted that the applicants are entitled to complimentary protection on the basis that the applicant will be arbitrarily detained in Iran and placed in prison where he will be subjected to serious harm in the form of beatings, solitary confinement, poor prison conditions, torture and inhuman or degrading treatment or punishment, or even death. The representative refers to reports of poor conditions in Iranian prisons.
Further with respect to the applicant daughter he submits that she cannot be absorbed into Iranian society without adverse consequences having spent more than half her life in a Western country with English as her first language and having a sense of belonging to Christianity and attending a church.
Does the applicant meet the refugee criterion?
The Tribunal accepts that the applicant is [age] years old and was born [in] Khuzestan, Iran. It accepts that he and his family moved to Ahwaz City in Khuzestan in 1987 when the applicant was a child.
The Tribunal accepts that the applicant completed high school in Ahwaz and has worked in a variety of jobs since he left school. The applicant’s father was [an occupation] and the applicant helped his father from time to time in the family business; he described operating [equipment] and doing [other] work for his father.
The Tribunal accepts that the applicant completed about 21 months of military service with the national police in about [year]. In the second Tribunal hearing he claimed he completed military service in [year] and that he served in Ettela’at (Ministry of Intelligence). The Tribunal considers that the applicant has confused the dates of his service between [year] and [year]. It also does not accept that the applicant served in the Ministry of Intelligence during his military service. Prior to the second Tribunal hearing he consistently claimed that he completed compulsory military service in [year range] and that he was serving with the disciplinary section of the Iranian police and the Tribunal accepts this evidence.
The applicant comes from a large family; his mother passed away in 2003 and his father remarried. He has [a number of] siblings.
The Tribunal accepts that the applicant married his former wife when he was about [age] /[age] years old and the couple had a child (the applicant daughter). The applicant and the applicant daughter are currently residing in Australia pending determination of their application for protection visas.
The applicant’s marriage breakdown and divorce.
The applicant claimed, and the Tribunal accepts, that the applicant and his former wife are divorced. The reasons for the breakdown of the marriage, as well as the nature of the divorced couple’s current relationship is unclear.
The applicant initially told the Tribunal that at the time of the marriage breakdown the parties loved each other very much and only separated and divorced because the applicant could not tolerate the criminal activities of his former wife’s family and she was unable to withdraw from a relationship with them. He stated that the couple had agreed that their daughter would live with him and his former wife would have contact once each week. At the first hearing he claimed that there were no problems between the couple and his former wife had regular contact with the applicant daughter by telephone or internet. The applicant daughter gave evidence that she was waiting for her mother to join them in Australia.
During the second hearing the applicant described his former wife as his worst enemy; that she was “two faced” and the couple had many fights. He stated he feared her more than the Iranian authorities and that she was upset because she had not seen their daughter for six years and would take revenge on him if he returned to Iran. He claimed the reason for the change in his evidence was because he did not wish to speak unfavourably about his former wife because his daughter was in the hearing room. The Tribunal does not accept this explanation; as pointed out to the applicant, his daughter sat outside the hearing room whilst he gave evidence.
The Tribunal considers that the applicant and his former wife divorced in 2010 as a result of marital disharmony. The applicant described her family as criminals with her brothers being involved in [criminal] activities. He also claimed that they attempted to engage him in some of their activities. However, he also claimed that one of his wife’s former relatives was a high profile cleric in Ahwaz.
The disharmony may relate to conflict with the wife’s family members as claimed, however, the Tribunal considers that the applicant has not given a full and frank account of the reasons his marriage broke down and the circumstances of his daughter’s removal from Iran.
It considers that the applicant has removed his [age] year old daughter from Iran without his former wife’s knowledge and consent. He gave evidence that on the day of his departure his daughter was at the home of his married sister attending a birthday party and that he took her to the airport from his sister’s home. His sister provided his daughter with travelling clothes because he did not have his daughter’s clothes with him. He also gave evidence that his wife had previously requested a contact visit with his daughter on that date, but he told her she could have contact on another date. This indicates that his former wife was not aware of his plans to remove their daughter at the time he left Iran and that the applicant misled her as to her prospects of having future visits with her daughter in Iran. He also stated in the second hearing that his former wife was currently upset with him because she had not seen her daughter for many years and he feared, as a result, she would take revenge on him if returned to Iran.
Further the evidence given by the applicant daughter indicated she was under the impression that her mother would be joining the family in Australia and that she missed her mother and she would like to visit Iran. This indicates that the applicant has not been frank with his daughter about the prospects of her mother joining her in Australia or the possibility of the applicant daughter returning to Iran to visit her mother.
The Tribunal considers that the applicant’s departure from Iran in the circumstances set out above may indicate that part of the applicant’s motivation for leaving Iran was to escape problems related to the breakdown of his marriage and, possibly, disputes over his daughter’s residence.
Claims of illicit relationship with the wife of an Iranian cleric.
The Tribunal does not accept that the reason the applicant left Iran was because he feared serious harm arising from a claimed illicit relationship with the wife of a senior Islamic cleric.
The Tribunal does not accept that the applicant had a sexual relationship with a woman called [Ms A] in 2011. The Tribunal does not accept that she was one of [the members of] the [club], that her husband was a senior cleric, that he and [Ms A] were attracted to each other or that they met regularly in his rented apartment in Ahwaz after he and his former wife divorced.
In his initial statement he claimed to have been involved with [Ms A], who was one of his [members] at the [club], and that their relationship commenced in July 2011.
However, at the Tribunal hearing the applicant gave quite detailed evidence about why and when he sold his [club] and the impact on him. He stated that as a result of problems he had with neighbours he had to close his [club] in 2010; he also referred to being closed down by authorities on one occasion for playing music during calls to prayer. He stated that he advertised and sold the [club] equipment in 2010. After he closed the [club] he gave evidence that he worked at the [Company 1] for some time before he left Iran, he also had a [service] business as well as working as a [driver].
At the end of his evidence about what he did between 2010 and 2011 immediately before he left Iran, he claimed that as well as with working for [Company 1], owning a [service business] and working as a [driver] he also worked [for] the person who bought his [club]. The Tribunal considers that he gave this evidence when he realised the significance of the apparent inconsistency between his evidence that he closed his [club] and sold his equipment in 2010 and his claim that he formed a relationship with one of his [club members] in July 2011.
When the Tribunal questioned the applicant about how he first came into contact with [Ms A] he stated that his memory was not good because of things that had happened in Australia. The Tribunal accepts that the applicant has been in Australia for over 6 years; that he felt uncertain and depressed about his future and that he had been to a number of interviews with officers of the Department and an assessor with the Independent Protection Assessment Office. It accepts that in retelling an account of events some things may be omitted, forgotten or minor details may change.
However, the applicant was able to provide quite detailed evidence about his [club] business, problems with his [club]’s neighbours and was quite voluble on a range of other topics in contrast to the evidence he gave about his claimed relationship with [Ms A]. Given that he claimed that the reason he left Iran and came to Australia on a boat with his [age] year old daughter and that he feared serious harm from authorities due to the discovery of the illicit relationship, the Tribunal would expect that the applicant would have been able to give a more detailed and genuine account of how he and [Ms A] met, how the relationship developed and some details about her personal life and their time together. His account was limited and lacked plausible detail. The Tribunal formed the view that he was not able to provide any further details about the claimed relationship or [Ms A] because he did not have such a relationship.
As the Tribunal does not accept the applicant had an illicit relationship with [Ms A], it also does not accept that on the day the applicant left Iran that he was working at the [club] in Ahwaz, that three bearded undercover police came to the door, that he escaped through the back door of the [club] and he then went on to make arrangements to leave Iran together with his [age] year old daughter. It does not accept that [Ms A] called him on his mobile telephone whilst he was escaping from police officers and told him to leave the county because their relationship had been discovered.
The evidence he gave regarding this claimed incident is also unsatisfactory. In the initial statement the applicant claimed that one day in October 2011 he was working at the [club]. The applicant heard a knock at the door of the [club] and he opened and saw three bearded men and a government car outside. He claimed he ran to the back door and escaped.
When questioned at the Tribunal hearing about this incident, the applicant claimed that three plain clothes men turned up at the [club], he saw their car through a crack in the door and immediately realised they were from the police because their car had an official green number plate. He then escaped through the back door of the [club]. Later in the hearing he claimed he went outside the [club], got into a physical fight with the officers, hurt his back and his knee and then ran out through the back door. He also claimed that he saw two cars. He could not explain how he saw the green number plate through a crack in the front door. The applicant did not mention getting into a physical fight with three police officers in his original statement and did not satisfactorily explain how he managed to escape from three police officers, particularly if his knee and back were injured.
As set out earlier in this decision the applicant claimed that he closed his [club] and sold his equipment in 2010. The Tribunal does not accept the applicant’s claim that he returned to work for the new owner of the [club] in 2011 and that the claimed incident with police took place whilst he was working for the new owner. As set out earlier it considers that this evidence was given to overcome the inconsistency between his claims of having a relationship with [Ms A] in 2011 and his earlier evidence of closing the [club] in 2010.
Further, the Tribunal considers that the applicant’s claim that he was involved in a physical fight with three police officers and then managed to escape through the back door of the [club] and caught a taxi on an adjoining road to be implausible. In making this finding the Tribunal acknowledges that evidence which may often appear to be implausible may sometimes be accurate and it does not dismiss the claim on this basis alone. However, when considered in conjunction with the other concerns set out above the implausible evidence supports a conclusion that the incident did not occur.
The Tribunal does not accept that as a result of this claimed incident in October 2011 that the applicant took steps to depart Iran in the manner claimed.
It does not accept that sometime after 12 noon on a day in October 2011 (in the following order or in a different order) he left the [club], collected his own passport, went to the central post office and applied to take possession of his daughter’s passport through entreaties with members of staff as well as offering a bribe. In any event, the applicant did not explain how he became aware that his daughter’s passport became available on that date and did not satisfactorily explain why he had applied for his daughter’s passport before the claimed incident with the police took place.
The Tribunal does not accept that the applicant went to the suburb of [Town 2], spent time with a travel agent, bought two air tickets for [Country 1] after being advised by the travel agent to fly to [Country 1] and then to seek out people smugglers in [Country 1] to arrange the applicants’ passage to Australia. It does not accept that he then contacted a friend, arranged to sell his car, attended a bank in the late afternoon with the friend to organise the exchange of funds, arrived at his married sister’s home, organised a change of clothes for his daughter, collected his daughter and went to the airport in Ahwaz to check in and board a flight to Tehran in the early evening (around 6pm). The whole sequence of events from the police attending at the [club] to departure from Ahwaz is said to have taken place took place within approximately 5 hours.
The Tribunal finds there is no real chance that the applicant will face serious harm for one or more of the reasons set out in s 5J of the Act if they return to Iran now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons claimed. The applicants do not satisfy the criteria in s.36(2)(a).
Do the applicants meet the complementary protection criterion?
The Tribunal has considered whether on the evidence before it, that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The Tribunal accepts that the applicant was involved in a minor way in the protests during the Green Movement demonstrations in 2009. It also found that he was not detained or punished by Iranian authorities and based on available country information would not be of any adverse interest to authorities for reasons of his previous involvement. The Tribunal does not consider that he will face any continued harassment, arrest or detention for this reason if he is removed to Iran.
The Tribunal accepts that the applicant was born into a Muslim family but that he was not religiously observant in Iran and that if he returns he will continue to have no interest in the practice or profession of any Islamic beliefs. However, as set out earlier in this decision, a large proportion of the Iranian population is not religiously observant and do not face any harm from Iranian authorities for this reason.
The Tribunal considers that the applicant has little interest in any religion and his lack of interest indicates that if he returns to Iran he will not seek to make his views public or in any way profess an atheist viewpoint. It does not consider he will face a risk of suffering significant harm for this reason if he is removed to Iran.
For reasons set out earlier the Tribunal does not accept that the applicant’s former wife will disclose to Iranian authorities that the applicants have attended a Christian church in Australia. It does not accept that the applicant will face a risk of significant harm for reasons of some attendances at Christian churches in Australia.
The Tribunal accepts that the applicant was affected by the data breach but does not consider that, in the unlikely event that the Iranian authorities were aware that he had been held in detention at the time of the data breach, he would face a real risk of significant harm for this reason.
The Tribunal accepts that the applicant has shared some anti regime links and photographs on a [social media] page but does not accept that he would be identified as the person sharing these links or holding these views as the [social media] page does not contain his personal and identifiable details. As the Tribunal has found he is of no adverse interest to Iranian authorities the Tribunal considers that his disguised [social media] posts will not cause him to questioned, harassed or detained or to face any mistreatment.
The Tribunal does not accept that the applicant has a genuine interest or commitment to the practice of Christianity and does not accept he will join a church, attend Christian activities or proselytise if he is removed to Iran. Accordingly it finds he will not face a risk of suffering significant harm for these reasons if he is removed to Iran.
The Tribunal does not accept that the applicant had an illicit relationship with the wife of an Iranian cleric for the reasons set out above, and does not accept he will face a risk of suffering significant harm for this reason if he is removed to Iran.
The Tribunal does not accept that the applicant daughter will face a risk of suffering any significant harm if she is removed to Iran.
The Tribunal rejects the applicants’ representative’s submissions that the applicant daughter will face a risk of significant harm because she cannot be absorbed or assimilated into Iran without adverse consequences simply on the basis she has spent six years of her life in Australia.
The applicant daughter is now [age] years of age and came to Australia with her father when she was [age] years of age. Her departure was involuntary and the manner of her travel from [Country 1] to Australia was dangerous. She has spent her early years in primary school in Australia and has learnt English which, as a widely spoken world language, will have benefits for her as she grows older. On the limited evidence available her situation in Australia has been less than ideal. Her father has been dependent on the assistance of charities for their support and he claims he is depressed and has found it difficult to find work.
If the applicant daughter remains in Australia she will be deprived of any personal face to face contact with her mother or other immediate family relatives in Iran. There is no evidence that she will suffer any health or educational disadvantage if she returns to Iran and the evidence suggests she will be able to enjoy contact with her mother and other members of her father’s large family. At the Tribunal hearing she stated that she would like to visit her family in Iran and was waiting for her mother to join her and her father in Australia. This suggests that the applicant daughter has a strong wish to be with reunited her mother and her wider family in Iran.
The applicant stated that the applicant daughter had occasionally attended a Christian church in Australia. However, the evidence is that the applicant daughter asserts that she has remained a Muslim to her mother and to other persons. The Tribunal does not consider that, given that she considers herself a Muslim, and only occasionally attended a Christian church with a friend for essentially social reasons that she will face a risk of significant harm for this reason if removed to Iran.
On the evidence before it, the Tribunal finds the applicants do not have a real risk of significant harm arising from the data breach for reasons set out earlier in this decision, or their status as asylum seekers.
Having considered the applicant and applicant daughter’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran that there is a real risk that they will be arbitrarily deprived of their lives or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The applicants do not satisfy the criteria in s.36(2)(aa).
Conclusion
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.
Louise Nicholls
Senior MemberATTACHMENT A-
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.
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a dependent child of another person.
Mandatory considerations
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.
EXTRACT FROM MIGRATION ACT 1958
5 (1) Interpretation
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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.
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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.
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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.
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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
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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