1712797 (Refugee)

[2022] AATA 649

1712797 (Refugee) [2022] AATA 649 (21 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712797

COUNTRY OF REFERENCE:                   Iran

MEMBER:Simone Burford

DATE:21 January 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 January 2022 at 4:27pm

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Nematollahi Gonabadi Dervish Order (NGDO/Dervishism) – credibility assessment – delay in applying for protection – level of involvement with the faith – engagement with Iranian authorities – country information – political opinion – critical views of the Iranian regime – mental health issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under

   
   

   s 65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is [an age]-year-old Iranian citizen who was born in Isfahan, Republic of Iran (Iran).[1] He is of Persian ethnicity and claims to be a Shia Muslim who follows the sect or faith of the Dervish faith or Nematollahi Gonabadi Dervish Order (NGDO/Dervishism).

   [1] The Tribunal notes the delegate’s decision incorrectly records the applicant’s age at the time of that decision as 27 years old when he was actually 37 years old at that time.

3. The applicant’s father is deceased. His mother is alive and living in Isfahan, Iran.  He has [specified family members].  [Most of them] live in Iran, in or around Isfahan.  One [sibling] lives in [Country 1].

4. The applicant arrived in Australia on a Student visa [in] July 2008.  He held a number of further Student and Temporary Graduate visas with the last of these being a Temporary Graduate visa which was valid until 19 December 2014.

5. He has been working at a [specified business] in Perth where he has been [in specified roles] for the past 7 years.

6. The applicant applied for the protection visa on 21 January 2014. The visa was refused on 25 May 2017.

   Issues

7. 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). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

8. The issue in the review is whether the applicant has a well-founded fear of persecution in Iran due to him being a member of the NGDO/Dervish faith or for any other reason, or whether complementary protection provisions otherwise apply.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Protection claims

   Protection visa application

10. The applicant detailed his claims for protection in his application from and in a Statutory Declaration dated 6 December 2013 which was provided to the Department in support of the application.  Essentially the applicant claimed to fear persecution in Iran on the grounds of his NGDO/ Dervish religion.

11. The applicant confirmed at the hearing that this was a fair summary of his claims for protection.  He did not raise any additional claims for protection before the Tribunal.

    The interview and submissions to the Department

12. The applicant attended an interview with the Department on 8 October 2015. Prior to the interview the applicant submitted the following documents to the Department:

    ·Submission from the applicant’s migration agent (15 pages, undated)

    ·Statutory Declaration signed by the applicant on 6 December 2013

    ·Military service termination card

    ·Birth certificate

    ·National ID card

    ·IELTS test results

    ·Educational qualifications obtained in Australia

    ·Certified copy of Iranian passport issued [in] 2007

    ·Australian Federal Police Certificate dated [in] March 2014

    ·Second submission from the applicant’s migration agent (11 pages, undated, references “recent developments in Iran”).

13. No further documents were submitted to the Department.

    The delegate’s decision

14. On 25 May 2017, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision to the Tribunal.

15. The delegate accepted the applicant was an Iranian citizen and had been resident there until travelling to Australia to study.  However, the delegate did not find the applicant to be a credible witness including in relation to his being an NGDO/Dervish member both in Iran and since arriving in Australia.

16. With respect to the applicant’s credibility, the delegate found that there were significant inconsistencies in the applicant’s account of his employment and financial situation in Iran in the context of prior applications for visas. The delegate noted the applicant’s account of his employment experience in Iran given at interview, where he claimed to have worked as an [Occupation 1] and [Occupation 2] and assisted his brother in a [product 1] shop, was not consistent with departmental records indicating he had claimed on an earlier visa application (2011) to have worked in his family’s [service 1] business.  That application did not mention [Occupation 2] or [Occupation 1] employment. He later agreed he had also indicated on an earlier application (2008) that he had worked as [an Occupation 3] in Iran but he had forgotten about it. As furthering his studies in [Subject 1] was the purpose of his initial student visa application the delegate found that the inconsistencies raised questions about the credibility of the reasons he initial gave for seeking entry into Australia.

17. The delegate also found that the applicant had provided inconsistent answers regarding his financial circumstances in the context of an earlier student visa application (2011) where he had indicated his bother-in-law was financially supporting him.  In his interview for the protection visa he had said he was being financially supported for the 2011 visa by his friends in Perth.  The delegate found this raised serious doubts about whether the evidence of his financial support he provided to obtain his 2011 student visa was genuine.

18. The delegate raised concerns about the account of the applicant’s association with the NGDO, including with respect to his time in Iran.  The delegate noted that the applicant claimed not to have been a Dervish in Iran but to have attended Dervish house gatherings.  He said he was arrested by police in 2006 due to having long hair and bring suspected of being a Dervish follower but he was not at that time. However, the applicant agreed he had also had long hair when he obtained his passport issued by police in 2007, indicating the police had no issue with the length of his hair. Further, he was able to obtain police clearances and exit Iran without issues suggesting he was not of interest to the authorities or on watchlists maintained by the Ministry of Intelligence and Security the Revolutionary Guard, against which country information suggested passengers were checked on exit from Iran.  This cast doubt on the credibility of his claims.

19. With respect to his claims of being a member of the NGDO the delegate found there were significant contradictions in his claims about his Dervish history and beliefs. The delegate found the applicant provided inconsistent answers regarding some practices of the Dervish sect and about the details of the community in Iran including how many practicing Dervish members were in Iran and whether or not long hair and an aesthetic lifestyle were features or requirements of NGDO practice or consistent with the applicant’s lifestyle in Australia and his physical presentation. The delegate also considered that the fact the applicant had applied for and obtained a new passport while in Australia was not consistent with his claim the authorities would kill him on return to Iran.

20. The delegate noted the delay in attending NGDO/Dervish group gatherings in Australia and the lack of evidence of his involvement with the Dervish community in Australia which they found cast doubt on his claimed commitment to Dervishism.

21. The delegate also considered the delay in seeking protection, finding that the applicant’s delay in seeking protection in Australia suggested his application was motivated by reasons other than those relating to a real concern for his safety.

22. Based on these concerns the delegate found the applicant’s claims were not credible.  Accordingly, the delegate was not satisfied the applicant was a person with respect to whom Australia had obligations under the Refugees Convention. Therefore the applicant did not satisfy the criteria under s 36(2)(a) of the Act.

23. The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran. Accordingly the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

    Review application

24. On 16 June 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.

    Hearings

25. The applicant attended hearings before the Tribunal on 17 December 2020 and 23 April 2021 to give evidence and make submissions in support of the review application.  The applicant indicated they did not need the assistance of an interpreter and the Tribunal was satisfied they were able to fully participate in the hearings in English.

26. The applicant attended the initial hearing in person.  His representative attended via telephone from Prague, having been unable at that time to return to Australia due to COVID-19 travel restrictions. The scheduling of the resumption of the adjourned hearing was delayed to accommodate the representative’s return from overseas and clearance through COVID-19 quarantine processes.

27. At the initial hearing the Tribunal discussed with the first applicant whether there were any changes to their claims as expressed in their application and at the interview with the delegate.  The Tribunal discussed with the applicant the information on which they were seeking to rely in support of their claims and their intention to call witnesses in support of the application. The Tribunal also took evidence regarding the applicant’s background and whether there were any changes to their personal circumstances since the application was filed. The applicant’s claims for protection and the evidence on which they were seeking to rely in support of their claims were discussed at the second hearing.

28. The applicant was invited to appear again on 16 March 2021.  On 11 March 2021 the applicant responded to the hearing invitation via his representative indicating that he would attend the scheduled hearing.  In answer to the question ‘Is there any issue that may affect your ability, or that of any other person participating, to take part in the hearing (e.g. a health problem or disability)?’ The applicant ticked ‘Yes’ and stated:

    Applicant is currently experiencing severe depression and is being treated for same.  This may affect his ability to participate at Tuesday’s hearing.

29. On 15 March 2021 the applicant’s representative wrote to the Tribunal seeking a postponement of the hearing on the basis that the applicant was suffering from ‘severe anxiety and depression’ and indicating he was seeking treatment for these conditions and had an appointment with a psychiatrist on 8 April 2021.  The email from the applicant’s representative stated that ‘His present condition may impact on his ability to present oral evidence at tomorrow’s resumed hearing. For this reason, we ask that the Tribunal give consideration to postponing the hearing to a later date.’  The request attached a copy of a letter from [Ms A], Counsellor, [Welfare Agency 1], dated 12 March 2021.  [Ms A] indicates she holds a Post Graduate Diploma in Counselling and that she has been a Torture and Trauma Counsellor for 5 years.

30. [Ms A]’s letter notes that the applicant has been attending counselling at [Welfare Agency 1] since August 2020 and states: 

    In the sessions attended by [the applicant], he persistently presented with very low mood with high levels of anxiety and depressive symptoms. [The applicant] reports experiencing a range of symptoms including sleep disturbance, nightmares, anxiety, feeling helpless, concentration difficulties and memory loss and loss of motivation and interest in any social activities.

    A Hopkins Symptom Checklist administered to [the applicant] on 05/01/21, to track his mental health in relation to anxiety and depression. His results are as follows:

    Hopkins Checklist:

    Date                  Anxiety               Depression

    05/01/21         3.10               3.67

    Please be advised that individuals with scores on anxiety and/or depression total or greater than 1.75 are considered symptomatic.

    [The applicant] scores significantly higher than the cut off for anxiety and depression. These results are also consistent with his presentation in sessions.

31. The letter indicated the applicant had been referred to [a Welfare Agency 1] psychiatrist and was scheduled for a psychiatric assessment on 8 April 2021. The letter also indicated his assessment was made in January 2021.  The letter also indicated that in light of his symptoms of anxiety and depression he would continue with ‘regular ongoing counselling’. The letter requests that ‘in consideration of [the applicant’s] emotional and psychological vulnerability’ consideration be given to postponing the hearing until after his psychiatrist appointment.

32. The Tribunal considered the request and supporting information.  The Tribunal did not consider it appropriate to postpone the hearing given the lateness of the request and the length of the postponement requested.  The Tribunal considered that the information provided did not indicate any basis, including any medical diagnosis or illness, which would preclude the applicant attending and participating in a hearing.[2] Accordingly, the Tribunal indicated the hearing would proceed as scheduled and any request to adjourn the hearing to allow for further medical evidence would be discussed at that time.

    [2] NAMJ v MIMIA [2003] FCA 983 at [69]; confirmed in SZMSF v MIAC [2010] FCA 585 at [17]–[21].

33. The applicant’s representative attended on the scheduled day and time.  The applicant did not attend.  The hearing did not proceed as the applicant was not present.  The Tribunal had an administrative discussion with the applicant’s representative which was recorded.  The applicant’s representative advised the Tribunal that the applicant was feeling unwell and had decided not to attend.  The representative told the Tribunal he had met with the applicant the day prior and that he had instructed the representative to attend on his behalf.  The Tribunal indicated it was not possible for the applicant to send a representative to the hearing on his behalf. 

34. The Tribunal decided to reschedule the hearing to give the applicant another opportunity to attend.  The hearing was rescheduled for 23 April 2021. The applicant attended that hearing in person with his representative.  The Tribunal considered the applicant was able to understand the nature of the proceedings and respond to the Tribunal’s questions without any issues.  The Tribunal was satisfied that the applicant was able to fully participate in the hearing to give evidence and present arguments in support of his application. The applicant did not raise any concerns regarding his participation on that occasion.

    Information provided to the Department

35. The applicant made his application for protection on 21 January 2014. The applicant was accompanied by the following documents:

    ·            Written submissions from the applicant’s then representatives;

    ·            Passport photos;

    ·            A statutory declaration of the applicant dated 6 December 2013;

    ·            An original and translation of the applicant’s military service termination card;

    ·            An original and translation of the applicant’s birth certificate;

    ·An original and translation of a national identity card in the name of [variant of the applicant’s name].

    ·            Educational documents;

    ·            An IELTS certificate (English language test); and

    ·Certified copies of the applicant’s passports issued [in] 2007 and [in 2012].

    Additional submissions from the applicant’s representatives also appear on the file though they are not dated. Submissions from the then representatives cited various sources of country information.

    Information provided to the Tribunal

36. Prior to the first hearing the applicant submitted the following to the Tribunal:

    ·Written submissions from the applicant’s representative dated 14 December 2020;

    ·            DFAT Country Information Report on Iran dated 14 April 2020;

    ·Human Rights Watch online article entitled “Iran: Over 200 Dervishes Convicted”.

37. Following the second hearing the Tribunal granted the applicant a further 14 days in which to provide additional submissions. On 7 May 2021 the applicant’s representative advised the Tribunal via email that “no additional evidence or material would be provided.”

38. The applicant’s claims for protection and the evidence on which they were seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below. At the second hearing, the Tribunal also discussed with the applicant relevant country information, including information contained in the most recent country information report on Iran issued by the Department of Foreign Affairs and Trade (DFAT) in April 2020 (DFAT Country Information Report).[3] 

    Evidence

    [3] DFAT Country Information Report Iran (14 April 2020).

39. During the hearing, the Tribunal questioned the applicant in order to determine the nature of his claims and to satisfy the Tribunal as to the applicant’s credibility.  The Tribunal took detailed oral evidence from the applicant regarding his personal circumstances and claims.  The Tribunal also sought clarification from the applicant about matters of concern raised in the delegate’s decision record. 

40. The applicant told the Tribunal that he completed his [school grade] in Iran, did 2 years compulsory military service [between specified years] and worked in various jobs including as an [Occupation 1] and [Occupation 2].  He had done handyman work and [Occupation 3] in a [specified business]. He also worked for his brother who owned a [product 1] shop and helped his father, [in his specified business]. [One sibling] is [an Occupation 4]. Another [sibling] had a [specified business] but was now doing [another job]. [Number] of his sisters are housewives. [One sibling] in [Country 1] is studying [subject].

41. He said that he travelled to Australia with savings and some money from him father. When asked why he came to Australia he said it was to start a new life –‘new job, new life, away from dramas and troubles of country’. He came on a student visa to study hospitality having worked in Iran as a [Occupation 3]. He said when he arrived he worked for 6 months as a [Occupation 3] but the circumstances were harsh so he changed courses and studied accounting for 2 years at TAFE.  He said to go further in his studies he needed to go to university but he couldn’t afford it.

1. The Tribunal asked why he didn’t return to Iran when he could no longer afford to study and he said that he wanted to live a new life ‘away from the environment of Iran with my beliefs, every aspect of my life and live a decent life free from my problems’.  He said he tried different avenues to ‘live a life’ but the last avenue he had was a protection visa as he couldn’t go back to Iran.  He said he even tried to get his boss to sponsor him because he ‘just wanted a simple life in free country where you can follow your beliefs as you are’.

2. The Tribunal asked what the applicant’s fears were on return to Iran and he said that it was ‘a dictatorship’, especially in terms of religious views.  He said the authorities made it clear to everyone and it was obvious that the Dervish people have been persecuted in Iran.  He said when the current government first came to power they eliminated minorities and made them flee, citing the treatment of the Bahai as an example.  He said they then moved to Sufis and minorities. He said around 2000 they cracked down on those who followed Dervishism – targeted their places of prayer, jailed them, arrested them and wouldn’t give them jobs. He said you couldn’t live in the country if you were Dervish or any other minority.  He said this was the reason he couldn’t go back.  He said there were hundreds of Dervish in jail being tortured and murdered and human rights organisations knew but they didn’t do anything about it.

3. The Tribunal asked how he had become involved with the Dervish sect and he said he did not know anything about it until he was introduced to it by a friend. He said he couldn’t remember details and dates as it had been many years and he was ‘suffering from lots of conditions recently’. He said he was doing [music instrument] classes and he met this friend through another friend in around 2005–2006. He said his friend had a different attitude and behaviours than normal people.  He couldn’t recall his friend’s name but said he ‘used to come to my place and go to his place’. He said he noticed a difference in him and his behaviour and his friend told him he was a Dervish.

4. He said he wanted to learn more but he had a fear his family would not understand. He said he had to be very careful. He said he kept in touch with his friend and he took him to a Hosseini (prayer place) once in Isfahan where they did the dance and the prayers, and he liked it but he was scared and cautious and he didn’t want to radically move and jeopardise his or his family’s safety. He didn’t become Dervish ‘100%’ until came to Australia where he could do so freely and follow what his heart desires.  The Tribunal asked what it was he liked about Dervishism and said the members were ‘genuine, warm-hearted’ he said they looked at his inner nature. He said they were honest.  He said he liked the prayer and dances and when he learnt more one of the things that interested him was that you are not born into Dervishism.  He said that you needed to understand and accept and come to the sect yourself which was not like being a Shia Muslim.  He said that was radical to him as he had just followed his parents.  He said there is a sincerity in Dervishism and the detachment from materialistic life and that Dervish followers were very honest and caring. He said it wasn’t that different to Shia Islam because you do the same prayers but you go through a few more steps to evolve.  He was attracted to that because it was genuine but it was hard to put into words.  He said the Hosseini was in North Isfahan but it was destroyed.  He said the authorities had done this to other Hosseinis.

5. The Tribunal asked if his family was aware of his involvement with Dervishism and he said that they knew he had a friend but didn’t know he was Dervish.  He said the government is ruthless and unkind and murder family members and relatives of the Dervish. The Tribunal asked if anyone else in Iran was aware of his involvement with his friend and Dervishism and he said ‘no’.  

6. The Tribunal asked whether the applicant was practising as a Shia Muslim prior to his engagement with Dervishism and he said he ‘couldn’t go the meetings’ but he was doing prayers at home. He said when you are Dervish it is something in your heart, the way you approach things.  He said you were still practising as a Shia.

7. He said after he arrived he was supporting himself for 3 or 4 years. He said even though he had the desire to practise as a member of the Dervish sect he had to work a number of jobs to support himself so he couldn’t be a member for the first 3–4 years.  He said when he finished his studies he joined gatherings and practised his faith more openly and during that time he would call himself a follower of Dervishism.

8. He said he had contact with the Dervish community in Australia in 2012 when he finished his studies. He said he searched online and found some contact numbers of people.  The Tribunal asked who he called and he couldn’t be sure but he thought [Mr B].  The Tribunal asked what the person’s role was and he said he was a coordinator in Melbourne.  He said there were no official groups in Perth but there were groups in Melbourne and Sydney. He said that person told him he could go to house gatherings.  He said he met friends and they were doing prayers together.  He named 2 friends, [Mr C] and [Mr D], who were followers.  He said he went to meetings once a fortnight or once a week.  He said the preferred time was Friday night but you could do it at home every day if you couldn’t go to meetings.

9. The Tribunal asked what the requirements of the sect were and he said they were ‘all internal’.  He said it was not like you have to wear a colour of shirt.  There were symbolic things like a white robe that made it clearer but what makes you Dervish is believing the teachings and following in your heart. He said there was no process for conversions, you just go to the gatherings and the leader asks you if you would like to practise and you say yes or no.  He said you still follow all the rules of Islam and the prayers and it is not really visible to everyone. The Tribunal sked if he was required to make a financial contribution and he said there is no obligation, ‘you help as much as you can’, it is between you and your own heart. He said Shia or Muslim people more generally pay one tenth of their income to their clergyman but the Dervish leader made it clear that money is not to be paid any more.

10. The Tribunal asked if his family were aware of his involvement with Dervishism now and he said is mother has noticed but he doesn’t like to tell anyone else for their own safety and security. The Tribunal asked what his mother’s response was and he said she is not young anymore, her response was a mature response ‘you follow your heart as long as you are a good man.’

11. The Tribunal asked what it was about his Muslim faith that made him turn to NGDO/Dervishism and he said he had an encounter with a Dervish man. The other side was that after high school he had to do 2 years of military service and that is where he came to see the society and have experience of real life.  He said he started to see the religion and the government including the Sepah army were corrupted and inhumane. He said it was shocking. He said he had a friend who committed suicide because of the negligence of the officer in charge and he was not remorseful at all.  He said it was many of the things he saw that caused him to not believe in the religion everyone was practising. He said they just use it as a mask and he did not want that any more in his heart.  He said that was his ‘path of faith’ that brought him to Dervishism.  He wasn’t saying Shia or Islam was bad but the way they were practising it was disgusting.  He said that it was 15–20 years ago when he became fed up with mainstream religion.  He said he was fortunate because before then it was superficial. He said that after that he could practise something more meaningful and since then he has come to understand that all the teachings of Islam work if you practise this way.

12. The Tribunal asked what the main teachings of Dervishism were and he said it was built on Shia Islam. He said Dervishism looks at the ‘real and deep meaning of the teachings’. He said as a Dervish you follow your heart to become more genuine and more caring.  They show you how temporary the transitional world is ‘just a fraction of whole existence.’  He said Dervishism teaches you ‘don’t attach to this world’ and ‘don’t crave for gathering more’. He said the core teachings were about not being attached to materialistic life but focussed on inner realities and fellow humans. What you do in this world affects your next reality.  They refer to each other as ‘poor’. This didn’t mean having nothing but when you pass you will have nothing and they emphasise this to remind their members you will be poor when you die. He said the current spiritual leader of Dervishism was Majzoub Ali Shah, Ali Jazbi. The Tribunal asked if there were other Sufi sects and the applicant said that there were many other groups of Sufis.

13. The Tribunal asked what the applicant thought would happen to him if he returned to Iran and he said that given the current circumstances the ‘minimal would be jail’.  The Tribunal asked why he would be jailed and he said that he would be labelled as something more justifiable than being Dervish such as being a spy.  He said the Dervish were subjected to all kinds of accusations, ‘everything but being Dervish.’ The Tribunal asked how the authorities would know he was Dervish and he said that they had ‘strong intelligence’ and spent significant money on intelligence machinery and others including the revolutionary guard and the Basij as an extra pair of ears and eyes to spy. The Tribunal asked what it was about Dervishism that draws the negative attention of authorities and the applicant said that it wasn’t Dervishism in particular but because they wanted everyone to follow the same way.  He said that particularly, Dervish leaders don’t believe Iranian leaders practise in the right way and make criticisms on the leaders. The government won’t stand anything except mainstream religion which keeps themselves in power.

14. The Tribunal asked how he would practise his faith in Iran and he said he couldn’t even imagine that.  He said that was unimaginable for him because they will find out in a matter of days and murder or jail him to send a message to others. The applicant said he would not propose to practise as a Dervish in Iran. The Tribunal put to him that country information suggested there were 2 million Dervish followers in Iran which suggested that they weren’t all arrested and queried what the applicant was saying would give rise to him being arrested.  He said he didn’t think there would be that many Dervish followers or practitioners, maybe supporters but not people who were practising or standing up for their faith.  He said much of the country information was wrong. He said there were not many dervishes living in Iran because Dervish had no human rights and no jobs and there were harsher and harsher crackdowns on them. He said the reported numbers were not actually Dervish practitioners in his understanding.

15. The Tribunal asked what practising in Iran would look like and the applicant said that here no one bothers you about what you believe but in Iran if you don’t practise like them you stand out and you are not one of them and it is clear you have different beliefs, so then you have to totally put aside your different beliefs or bear the consequences. He said it was very interesting for him because those in jail if they simply denounced their beliefs would be free but they didn’t because they believe it so much.  The applicant said this was true for him too.  He was ‘happy to be killed, to be sentenced to be jailed, but not to let go of something that has changed my life in practical ways.’ He said all they can do is make life, which is short, a little bit shorter.  The Tribunal asked in what practical ways being a Dervish had changed his life and he said it was the way he approached life. He said he wasn’t greedy for anything anymore. He lived life very simply.  He was at peace with himself and others. He said all his colleagues and friends would say to him ‘you are different’. He said it was difficult to explain words because it was so overwhelming.  

16. The Tribunal asked how many Dervish people were in Australia and he said he didn’t know the exact numbers but there were ‘under 20 people in Perth.’  He said most were in the US.  He said the meetings were held at [Mr C]’s house. The Tribunal asked what the ceremonies of Dervishism were and the applicant said the Sema which you do once a fortnight. He said you gather together, to meditate, pray and reflect and try to connect with your god. He said it was very elaborate if someone wants to do it properly, including music and wearing the white robe. He said in Australia they do have all those things and once a month they do it as they can.  He said maybe once a month they do the dance as well around a candle with a prayer.

17. The Tribunal asked whether he came to the attention of authorities due to Dervish practice when he was in Iran and he said it was confusion or mistake.  He said they assumed he was Dervish but he wasn’t a practitioner. He said in late 2006 he was shopping in Isfahan and was approached by a couple of Basij and asked to follow them to their base. He asked what he had done but they didn’t explain and he was detained for 2 days. He said he had long hair in Isfahan and they assumed he was a Dervish follower. He claimed he was ‘tortured, insulted’. He said they wanted you to confess what they say you are. He said they couldn’t find any record of him because he wasn’t really a Dervish follower then and they released him after 2 days.  He said his father came to collect him and told them he wasn’t a member of any sect or group. He said he was held at the detention centre in [location]. The Tribunal asked what his father said when he picked him up and he said he told them he was not a Dervish and he was an older, ‘trustable man’ and  because they couldn’t find anything against the applicant they couldn’t hold him. He said he wasn’t physically injured but he was slapped, hurt, kicked and sworn at. He couldn’t recall exactly when it was but he thought later in 2006.

18. The Tribunal asked what his father said about this and he said ‘he knew I wasn’t Dervish’ but he didn’t like him having long hair because he was old fashioned. When asked what his father said after the incident he said he told him he had warned him not to have long hair and that he needed to shave it off.  The Tribunal asked how long this was before he left Iran and he said one-and-a-half years. At the time he was working as an interpreter in the company.  The Tribunal asked if he had any issues leaving Iran and he said he didn’t have any trouble. He got a passport, exit approval and a police clearance.

19. The Tribunal asked if anything had happened since he left Iran which would make him believe the authorities would be aware of his practice in Australia and he said ‘no’. He said he was happy to be in Australia and anyone here can believe whatever they want and it is no one else’s concern.

20. The Tribunal asked if there was anything else he wanted to tell the Tribunal. He said that there is suppression and the cruelty of the regime breaks his heart. He would rather die here than return there. He said he cannot imagine returning to that state and country.

21. The Tribunal discussed with the applicant his concerns regarding the delegate’s findings and the departmental interview.  The Tribunal notes that the applicant’s representative made written submissions addressing some of those issues.  The applicant observed that the delegate had made factual errors and these affected the decision.  The applicant said his life had been a hell and put him in a state of despair, anxiety and depression.  He said there were clear mistakes and he felt he was put in a position at the department interview that he was not telling the truth.  With respect to military service and the failure to declare his service on one of his applications he admitted he had said no to the question asking about military service but his understanding was that it was not ‘military service’ but compulsory government service, he said the description in Farsi was closer to government service.  He said he had provided evidence of his military service with his original visa application and had not attempted to hide that service. This was not a matter on which the Tribunal placed weight in assessing the credibility of the applicant’s claims.

22. The Tribunal provided the applicant with additional time to provide evidence following the hearing, in particular with respect to his practice in Australia, however no further information was provided.

    Submissions

23. The applicant’s current representative made written submissions to the Tribunal.  The submissions confirmed the applicant’s protection claims remained unchanged and that the applicant feared persecution in Iran on the basis of his NGDO/Dervish religion.  A previous representative also made written submissions to the Department with respect to the same claims.

24. The more recent submissions raised a number of issues with the conduct of the delegate’s interview. These included the length of time in the interview devoted to the applicant’s prior visa applications and work history compared with that concerning his claims and the fact the applicant was not advised of his right to privacy with respect to the interpreter until well into the interview.  The submissions objected to the delegate placing weight on inconsistencies in the applicant’s information from the protection visa application and the earlier visa applications made by him.  The submissions also contended that some of the delegate’s factual findings were incorrect.

25. The Tribunal took note of these submissions.  However, the Tribunal notes it is conducting a review de novo and it was unclear how such issues were relevant to its consideration of the application.  In particular the submissions did not indicate how the procedural issue with respect to the interpreter was relevant. The Tribunal particular notes no interpreter was requested for these proceedings and no particularly issues of translation were raised with respect to the earlier evidence to the Department.  Further, the Tribunal did not accept that information provided by the applicant with respect to prior visa applications could not provide a proper basis for credibility findings, noting the procedural fairness requirement that such issues be put to the applicant for his comment or response.

26. With respect to the applicant’s claims the submissions contended as follows:

    ·     The delegate made an issue that the applicant did not have long hair but the applicant had maintained short hair to avoid being identified as a member of the NGDO, this was similar to other high profile Sufis and Dervish leaders;[4]

    ·     The delegate did not accept the applicant’s explanation in relation to adopting an ascetic life and in any event ascetism did not preclude all material things;

    ·     The applicant’s claim that there were 2000 followers of NGDO in Iran was consistent with country information that there were 2 to 4 million supporters of the order in Iran;

    ·     The applicant did not apply for a protection visa earlier as he wanted to prove himself and go down a sponsored work visa pathway.

    [4] Citing the following sources – See for example – >

    The applicant’s representative submitted in summary:

    ·     The applicant faces a real and well-founded fear of persecution in Iran at the hands of the local authorities. The persecution feared involves serious harm – namely lack of job prospects, denial of access to documents and public service, detention and physical harm. Although the NDGO are only a small minority, the chance of harm is not so small as to be insignificant.

    ·     The applicant’s fear is well founded for reason of his religion. That is as a member of the NGDO.

    ·     The applicant faces persecution in all areas of Iran and cannot relocate.

    ·     Third country protection was not available to the applicant.

    ·     Complementary protection obligations do not apply.

1. The submissions also included a report from Human Rights Watch dated 29 August 2018[5] and the  DFAT Country Information Report.

   [5] Iran: Over 200 Dervishes Convicted Trials Violate Rights to Legal Defense, Basic Liberties – Available at

   >

   The applicant’s representative elected not to make oral submissions at the end of the third hearing and indicated he wished to speak to the applicant and put in further written submissions subject to those discussions.  The Tribunal allowed time for this following the hearing however no further submissions were received.

   RELEVANT LAW

2. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

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

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

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

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

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

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

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

9. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

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

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

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

    Complementary protection criterion

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

14. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

15. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

16. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility assessments

17. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[6] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

    [6] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ.

18. Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[7]

    [7] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].

19. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [8] MIMA v Rajalingam (1999) 93 FCR 220.

    [9] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

    Receiving country

20. The applicant travelled to Australia on an Iranian passport and claims to be an Iranian citizen.  The delegate had no concerns about his claimed nationality and the Tribunal accepts the applicant is a national of Iran and has assessed his protection claims accordingly. 

21. The Tribunal finds that the applicant is a citizen of Iran, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

    Immigration history

22. The Tribunal discussed the applicant’s migration history, as outlined in the delegate’s decision, with the applicant at the first hearing. The applicant’s migration history is as follows:

    ·     [In] July 2008 the applicant arrived in Australia as a holder of a Student (subclass TU-572) visa which was valid until 27 July 2010.

    ·     On 2 July 2010 the applicant was granted a Bridging visa A (subclass WA-010) that was valid until 27 July 2010.

    ·     On 27 July 2010 he was granted another Student (subclass TU-572) visa that was valid until 15 March 2011.

    ·     On 22 February 2011 the applicant was granted another Bridging A visa that was valid until 9 May 2011. 

    ·     On 9 May 2011 he was granted another Student visa that was valid until 15 March 2013. 

    ·     On 20 December 2012 he was granted another Bridging A visa that was valid until 19 June 2013. 

    ·     On 19 June 2013 he was granted a Temporary Graduate (subclass VC-485) visa that was valid until 19 December 2014.

    ·     On 21 January 2014 the applicant lodged his protection visa (PV) application and he was granted an associated Bridging visa A.

23. The applicant confirmed that this was a fair summary of his migration history.  

24. For the reasons outlined below, and as discussed with the applicant at the hearing, the Tribunal finds that the applicant’s considerable delay in seeking protection casts doubt on the credibility of his claims to fear harm for reasons associated with events which occurred prior to him leaving Iran in 2008.

    Country information

25. The Tribunal also discussed with the applicant country information regarding NGDO/Dervish followers in Iran, including information contained in the DFAT Country Information Report.[10]  A copy of the relevant section of the report was also submitted by the applicant to the Tribunal.

    [10] DFAT Country Information Report – Iran, 14 April 2020.

26. DFAT’s most recent country information report on Iran indicates that the official religion of Iran is Shia Islam and that over 99 per cent of Iranians are Muslim. Article 4 of the Iranian Constitution requires ‘all of the country’s laws and regulations be based on (Shia) Islamic criteria’.  Government policy and legislation heavily favours the majority Shia population in practice, leading to pervasive structural discrimination against non-Shia.[11]

    [11] DFAT Country Information Report at 3.27–3.28.

27. The NGDO (commonly known as the ‘Gonabadi’) are the largest Sufi order in Iran. The Nematollahi Gonabadi are one of the three main branches of the Nematollahi Sufi Order.[12] Estimates of how many people belong to the Gonabadi vary between two and five million people.[13] Like all Sufi orders, they are not an officially recognised religion in Iran.[14] Gonabadi dervishes consider themselves to be part of Shia Islam, however they have a different interpretation of the Quran.[15] The Immigration and Refugee Board of Canada (IRBC) cites an academic source stating that ‘the core ethical beliefs of the Gonabadi Sufi Order can be summarized as ‘selflessness, generosity, broadness of spiritual vision, and religious tolerance’.’[16] The central practices of the Gonabadi dervishes are identical in respect to normal theological beliefs and practice with ordinary Shia practice, such as ritual prayer 5 times a day, fasting during Ramadan and the giving of alms, practices which the Sufis share with the rest of Shia (and indeed Sunni) Muslims.[17] An article on Al-Monitor, states that "Sufis' lack of interest in exoteric Islam and religious rules has always been a point of conflict between the Sufis and the clerics" and that this conflict "has always existed".[18] A March 2021 report by the Iran Human Rights Documentation Centre (IHRDC) states that NGDO ‘pray, fast, and perform religious rituals in accordance with treatises of senior Shi’a clerics.’[19] According to information in the IRBC report ‘the core ethical beliefs of the Gonabadi Sufi Order can be summarized as "selflessness, generosity, broadness of spiritual vision, and religious tolerance". As Sufis, the practice of the Gonabadi dervishes also emphasizes a personal, internal spiritual practice and relationship with God. However, unlike other branches of Sufism, "Gonabadi dervishes were forbidden from ascetism and withdrawal from the world by their leader" and do not wear a special costume.’ (citations omitted).

    [12] Iran: Information about the Gonabadi dervishes, including their origin, history in Iran, leaders, ideology, practice; and the treatment of dervishes and their family members by society and authorities in Iran, including whether dervishes can practice their faith in Iran (1965-2014), Immigration and Refugee Board of Canada, 23 September 2014.

    [13] Iran’s Gonabadi Dervishes: A ‘long history’ of persecution’, Al Jazeera, 27 February 2018, 20190517145525; 'DFAT Country Information Report - Iran', Department of Foreign Affairs and Trade, 14 April 2020, p.35

    [14] DFAT 2020 Report, p.25,

    [15] ‘Iran’s Gonabadi Dervishes: A ‘long history’ of persecution’, Al Jazeera, 27 February 2018, 20190517145525; ‘The hidden side of Iran. Discrimination against ethnic and religious minorities', International Federation for Human Rights, International Federation for Human Rights, 01 October 2010, p.23; Refworld | Iran: Information about the Gonabadi dervishes, including their origin, history in Iran, leaders, ideology, practice; and the treatment of dervishes and their family members by society and authorities in Iran, including whether dervishes can practice their faith in Iran (1965-2014), Immigration and Refugee Board of Canada, 23 September 2014.

    [17] Refworld | Iran: Information about the Gonabadi dervishes, including their origin, history in Iran, leaders, ideology, practice; and the treatment of dervishes and their family members by society and authorities in Iran, including whether dervishes can practice their faith in Iran (1965-2014), Immigration and Refugee Board of Canada, 23 September 2014.

    [18] Refworld | Iran: Information about the Gonabadi dervishes, including their origin, history in Iran, leaders, ideology, practice; and the treatment of dervishes and their family members by society and authorities in Iran, including whether dervishes can practice their faith in Iran (1965-2014), Immigration and Refugee Board of Canada, 23 September 2014.

    [19] Living Under Suppression: The Situation of Gonabadi Dervishes in Iran’, Iran Human Rights Documentation Center, March 2021, p.9, 20210309092733  

28. Country information points to significant tensions between the current Iranian ruling establishment and Sufi orders.  With respect to the NGDO’s relationship with the ruling establishment in Iran,  an article reported in March 2018, Dr Seyyed Azmayesh, the official representative of the NGDO outside Iran stated:[20]

    There is a fundamental difference between Sufis and the ruling clerical establishment. The clerics rely on stories and sayings that are fabricated and falsely attributed to the Prophet Mohammad. But Sufis always refer to the Koran. That’s a significant point. Sufis do not consider their discipline a branch of Islam, but rather Islam itself. In other words, they try to live the teachings of the Koran.

    …

    Rampant corruption within Iranian society, particularly the misappropriation of public funds, has turned many disillusioned Muslims away from the establishment. But they do not abandon their faith in God and the Koran. Instead, they find solace in Sufism and mysticism. This trend explains the rise in the popularity of the Nematollahi Gonabadi Sufi Order, which is one of the oldest spiritual disciplines in Iran.

    [20] The Gonabadi Dervishes: Gnostics, Royal Advisors, Political and Religious Adversaries     - KAYHAN LIFE

29. The DFAT Country Information Report states:

    Sufis, known in Iran as Dervishes, practise a mystical form of Islam. Sufis in Iran are generally from the Shi’a Islam tradition and follow practices emphasising peace, tolerance, introspection and spiritual closeness with God. As part of their rituals, Sufis play music, dance and sing in search of a direct encounter with God. Iran does not recognise Sufism as an official religion, and its adherents are considered Shi’a Muslims. Official data on the number of Iranians who practise Sufism are therefore unavailable. The Gonabadi Dervish (also known as Nematollahi Gonabadi) are the largest of Iran’s Sufi Muslim orders. Their size is estimated anywhere between 2 million and 5 million followers. Another large Sufi Muslim order, the Yarsan (also known as Ahl-e Haq or Kakai), is estimated to have 1 million followers. Some Sufi men in Iran are recognisable by their thick moustaches, which are considered a holy symbol in some Sufi orders. Public gatherings of Sufis are circumscribed.

    The Gonabadi Dervish are considered a deviant sect of Islam although, historically, have been tolerated by the authorities. The current spiritual leader (‘qutb’, or grand master) of the Gonabadi Dervish order, Nour Ali Tabandeh (also known by the title Majzoub Ali Shah), is a former deputy culture minister and deputy justice minister of Iran. Tabandeh publicly backed reformist candidate Medhi Karroubi in the 2009 presidential election, and has been under house arrest since February 2018.

    Shi’a clerics have denounced the Gonabadi Dervish in their sermons and public statements, and its adherents have come under increased pressure from the authorities in recent years. Some Gonabadi Dervishes have reportedly been dismissed from their jobs and banned from universities due to their affiliation, and websites administered by Gonabadi Dervishes have reportedly been shut down. In February 2018, 300 Gonabadi Dervishes were detained during a protest in Tehran against the house arrest of Tabandeh. Protest clashes resulted in the deaths of five security officers, including three struck by a bus.

    According to Amnesty International, over 200 Gonabadi Dervishes were handed prison sentences (ranging from four months to 26 years) and other punishments – including flogging, internal exile, travel bans, and bans on membership of political and social groups – for their involvement in the protests. The driver of the bus was executed in June 2018. Another Gonabadi Dervish protester, Mohammad Raji, reportedly died in custody. In June 2018, 10 Gonabadi Dervish women detained in connection to the February protests went on a 16-day hunger strike to protest their perceived mistreatment in prison.

    ……

    DFAT assesses that Sufis face a moderate risk of official and societal discrimination insofar as they cannot worship freely and must misrepresent themselves on official documents, including in order to access education and employment.

1. In response to this information the applicant said that Sufism is different to Dervishism.  The Tribunal pointed out this information or assessment related to Sufism generally but the analysis included the NGDO. He said the suppression of Sufis was not minor.  He said it had been severe for the last 10 years and was ‘getting worse day by day.’ He said there were hundreds in prison.  He said no one really understands how Iran works. He said if plain clothes people went and injured and bashed Dervishes you couldn’t blame the government because they were not uniformed. He said they were harmed indirectly by people working for the government and no one gets blamed because they were not identified.

100.   The Tribunal put to the applicant country information that suggested people had to be introduced to the order by a process initiating you into the order by a grand master. Iran Wire provides the following information regarding the process for those wishing to join the NGDO:[21]

[21] ‘Who are the Gonabadi Sufis?’, Iran Wire, 13 February 2018.

Sufism is not inherited and Sufis do not proselytize. Gonabadi dervishes follow Shia commandments including praying five times a day and fasting during the holy month of Ramadan. But if an individual wants to join them they are required to visit Noor Ali Tabandeh. If he decides that the person has arrived at a heartfelt certainty, then he or she will be able to join his circle of Sufis.

101.   Country information suggests that individuals can be initiated into the order by the five or six shaykhs (spiritual leaders) who sit under the grand master.[22] He said that when he had referred to there being no process of conversion or entry to the faith he was referring to what he was required to do not what was done from the Dervish order side.  He said there was a conversation about whether you genuinely wanted to join.  The Tribunal asked who undertook this process with him and he said it was in Isfahan.  The Tribunal put to him that he said he wasn’t a practising Dervish in Iran and he said he was initiated but he wasn’t practising freely and fully. He said the initiation was after his arrest when he went to the Hosseini once. The Tribunal asked who initiated him, and he said it was Mosshen Rashidi, who was the appointed leader of the Hosseini. He said there was no ritual or initiation as such. The leader explains more what Dervish is and asks if you would like to join. He said they had a conversation and a person could indicate they would like to join and were interested in this faith and then you were a member.

102.   The Tribunal also put to the applicant that country information suggests that Dervish followers pay one tenth of income to their leaders. According to the Iran Human Rights Documentation Centre:[23]

According to Shiʿa jurisprudence, Shiʿa Muslims are required to pay two different Islamic taxes, zakat and khums, in order to complete their faith. As these taxes are a matter of faith, the Iranian state does not enforce them like state-mandated taxes. Historically, the poor and non-Muslims are exempt from paying these taxes.

From the Shiʿa point of view, Khums is a one-fifth share of specified forms of income, set aside for variously designated beneficiaries. Khums must be paid to the righteous faqih who has the sole discretion to distribute it. Gonabadi Dervishes, however, do not pay Khums to Shiʿa clerics. Instead, they submit one-tenth of the specified forms of their income to their qutb to use it for charitable causes that he deems most worthy of support. This one-tenth tax is called Oshriyeh.

Shiʿa clerics are very dependent on financial resources provided by Khums. Starting from early 20th century, Gonabadi Dervishes have deprived Shiʿa clerics from a major part of this financial source. Not surprisingly, they unanimously have ordered that Oshriyeh does not conform with Islamic law, and Gonabadi Dervishes defy the shariʿa by not paying their religious taxes to Shiʿa clerics.

(Citations omitted)

[22] Refworld | Iran: Information about the Gonabadi dervishes, including their origin, history in Iran, leaders, ideology, practice; and the treatment of dervishes and their family members by society and authorities in Iran, including whether dervishes can practice their faith in Iran (1965-2014), Immigration and Refugee Board of Canada, 23 September 2014.

[23] ‘Living Under Suppression: The Situation of Gonabadi Dervishes in Iran’, Iran Human Rights Documentation Centre, March 2021, at [3.4].

103.   The Tribunal noted this information appeared to be inconsistent with his evidence that there was no set contribution required from members of the Dervish faith. The applicant said this was not the case and as a Dervish you pay what you can.

104.   Additional relevant country information is referred to below.

Identity issues

105.   The applicant was born in Iran. He provided copies of his Iranian passports and birth certificate. While one document he provided to the Department (the ID card) appeared to relate to another person, the delegate accepted the applicant’s identity and there was no material to suggest the applicant was not the person in his passports.  The Tribunal accepts that the applicant is a citizen of Iran and that Iran is the receiving country for the purposes of s.36(2)(aa).

Consideration of claims

106.   The Tribunal has carefully considered the claims of the applicant in his original application for protection and his subsequent application to this Tribunal, individually and then cumulatively.

107.   As noted earlier, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. 

108.   The Tribunal has significant concerns about the credibility of the applicant’s claims. There were inconsistencies in aspects of his core claims in relation to events which occurred in Iran including with respect to his engagement with Dervishism and the Iranian authorities. Further, with respect to aspects of his claims he struggled to provide meaningful detail and context and failed to provide any corroborative evidence regarding his own circumstances and practice.

109.   The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence.  The Tribunal is mindful of the passage of time and the effect this may have on the ability of the applicant to precisely recall dates and events.  The Tribunal is also mindful of the impact the applicant’s claimed mental health issues may have on his evidence. However, the Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to provide corroborating evidence where, in the Tribunal’s view, it is reasonable to expect it would have been possible for the applicant to provide it.  This was particularly the case with respect to the applicant’s claimed engagement with Dervish groups or followers in Australia where there are no restrictions on the applicant’s religious practice. This included the Tribunal allowing further time for such evidence to be provided.  No corroborative evidence was provided. No reasonable explanation for the failure to provide such evidence was offered.

110.   In considering these issues the Tribunal has had regard to the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility (July 2015) and the Guidelines on Vulnerable Persons (November 2018).

111.   However, the Tribunal found the inconsistencies or vague evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or the applicant’s mental health issues as described in the material available to the Tribunal. 

112.   Further, in the Tribunal’s view, the applicant’s conduct in Australia contributes to doubts regarding his credibility and claims for protection.  This includes the delay in seeking protection until 6 years after his arrival in Australia, the delay in his claimed engagement with the Dervish community in Australia and the lack of any corroborating evidence with respect to that engagement.  These issues are considered further below.

Fear of harm as a member of the Dervish sect or faith

113.   The central reason the applicant claims to fear harm on return to Iran is that he is a member of the NGDO, or a member of the Dervish faith. 

114.   The Tribunal accepts that the applicant is from Isfahan in Iran.  The Tribunal also accepts that the majority of his surviving family members, his mother and 5 of his siblings remain living in Iran and that one of his sisters lives in Italy.  His father die in early 2014.The Tribunal finds based on his evidence that he remains in contact with his family members and has done so since leaving Iran. 

115.   The applicant testified that he is a practising Shia Muslim and the Tribunal accepts this to be the case.  However, he claims to be a member of what, according to country information, is considered to be a deviant sect of that faith, NGDO or Dervishism. For the reasons outlined below the Tribunal does not accept this claim.

116.   The applicant claims to have left Iran in order to pursue studies in Australia, and to make a new life for himself away from Iran.  The applicant expressed dissatisfaction with the Iranian regime and with conditions in Iran, particularly with respect to individual freedoms.  The Tribunal accepts the applicant genuinely holds views critical of the Iranian government.  However he did not claim to fear harm on that basis. He does not claim, nor is there any evidence, of him having engaged in any activities in Iran or Australia which could be described as publicly critical of the authorities in Iran. The Tribunal does not accept he would engage in activities in Iran which would be, or would be perceived to be, critical of Iranian authorities or that he would face a real chance of harm based on actual or implied political opinions.

117.   The Tribunal also does not accept the applicant is an active or practising member of the NGDO in Australia nor that he was a practising member or follower of NGDO in Iran prior to coming to Australia.

118.   A central concern for the Tribunal, which was discussed on several occasions with the applicant and his representative, was the lack of any evidence of the applicant’s claimed engagement with NGDO either formally or informally in Australia.  This was despite his claim to have been practising in Australia since 2012, including having reached out to Dervish community organisers in Melbourne in 2008 and to have practised with a Perth based group of followers on a weekly to fortnightly basis since around that time. 

119.   At the hearing the Tribunal discussed these concerns with the applicant.  The Tribunal put to the applicant that it would be reasonable to expect corroborative evidence of religious practice engaged in in Australia over such a significant number of years could be provided. The Tribunal observed that it was difficult to accept a claim to be a member of a religious faith where there is no corroborative evidence to support that claimed practice in Australia, a country where there are no restrictions or constraints on the way a person can practise their religious faith. In response to this the applicant said that he had explained the procedure of what he engages in.  The Tribunal asked about evidence from the people he practises with or leadership in the Dervish community in Australia or Iran, noting the applicant claimed he was initiated into the order prior to coming to Australia in 2008 and has been practising in Australia since 2012. The applicant indicated he did not have such evidence.

120.   At the suggestion of the representative, the Tribunal asked if the Iranian authorities had informants in Australia and he said ‘absolutely’ and that he thought he had come across some of them.  The Tribunal pointed out he had earlier said he had no reason to believe that the authorities were aware of his engagement with Dervishism in Australia. He said he didn’t understand the earlier question.  The Tribunal asked again if he thought the Iranian authorities were aware of his activities in Australia and he said that he couldn’t say for sure  the authorities were aware of his activities but sometimes he meets people and someone will tell him they work for the government. He said that was why with his activities with the group he didn’t want to be clear and didn’t have any evidence of it or anything because they know they are everywhere and Australia has migrants and the Iran government has spies everywhere and they can access any information anywhere.  The applicant claimed that recently they had sent people to assassinate Iranians in Turkey so the question is whether you are worthy of being eliminated or not, not whether they can do it or not. 

121.   The Tribunal asked if the authorities in Iran had approached his family there about his activities and he said that was a sad point because his mother wouldn’t tell him because she is so caring, so she hadn’t told him but even if they had she wouldn’t tell him. The Tribunal asked if his siblings had told him about any approaches in Iran and he said they had not. The Tribunal asked if he was saying there was an Iranian source in his Dervish group here and he said no, not in the group but an Iranian he met long ago. He said he was not a part of the Dervish group.  The applicant’s representative said they had tried to find cooperative witnesses to corroborate his involvement with the Dervish community but that they hadn’t found any to date.  

122.   The applicant claimed the lack of evidence was due to concerns among community members that the Iranian authorities had spies among the Australian based Iranian community. He offered no evidence or country information to support this claim.  Notwithstanding this, the Tribunal is prepared to accept that the Iranian authorities may have an organised intelligence regime with extraterritorial reach.  However, the Tribunal did not accept this would be a reason for the failure to provide any evidence to corroborate his practice in Australia where he testified he was free to worship as he wished and where the evidence did not suggest he was of any interest to the Iranian authorities.  In this regard the Tribunal notes the applicant confirmed he had been able to leave Iran on an Iranian issued passport without issue and had renewed that passport while in Australia and where he was not aware of any approached by the authorities to his family in Iran regarding any of his claimed activities in Australia.  The Tribunal notes that in his statutory declaration in support of his application for protection dated 6 December 2013, the applicant stated that he couldn’t tell his family about his Dervish faith because her feared they would disown him and ‘I do not want to bring to the authorities attention of my faith as this will not only put my life in danger but it will also put my families [sic] life in danger’. Before the Tribunal he said his family did not know about his activities in Ian because the government was ruthless and would murder family members.  In the Tribunal’s view this suggests a lack of any interest by the authorities in his family members and demonstrates a lack of interest in the applicant.  Further, the Tribunal notes country information, including that cited by the delegate, which indicates that security organisations are present at Iranian airports and travel bans are used where there are security and other concerns.[24]

[24] DFAT Country Information Report, page 69, at [5.22] to [5.26]. ‘Country Information and Guidance - Iran: Illegal Exit’, para 4.1.2, UK Home Office, 20 July 2016.

123.   Further, were concerns regarding Iranian intelligence operatives in Australia significant enough to deter members of the community from providing evidence in closed proceedings before the Tribunal, it is reasonable to assume they would deter those from publicly practising or advertising activities considered to be a threat to the regime, including according to the applicant’s claims, the NGDO.  Yet, the applicant said he contacted the Dervish community members in Australia through an online search and was given contacts in Perth with whom to meet.  Further, the Nematollahi Sufi internet site lists contacts for its centres internationally including in Australia.[25] Submissions from the applicant to the Department claimed that the applicant maintained contact through the ‘Nematollahi Gonabadi site’ which ‘keeps him in contact with the latest news about his fellow worshippers’. The Tribunal notes that in his December 2013 statutory declaration in support of his protection claims he stated that ‘There is a community here in Perth who holds gathering for all Sufi and Darvish followers, there is the elders who teach’. There is also an event organiser’. This level of organisation and account of entry and outreach is not, in the Tribunal’s assessment, consistent with the claim that no corroborative evidence could be offered of his many years of claimed practice in Australia due to fears among the Dervish community in Australia of the Iranian authorities spying on those practicing here.

[25] Home | The Nimatullahi Sufi Order; Find a Center | The Nimatullahi Sufi Order

124.   Compounding these concerns, the Tribunal considered elements of the applicant’s evidence regarding his introduction to the faith and level of engagement in Iran to be inconsistent and contradictory. When the Tribunal asked him about his introduction to the NGDO in Iran he said he had been introduced to it by a friend of a friend who had taken him to one meeting at a Hosseini. He said there no Hosseini in Perth and they practiced at home here. He said he liked what he saw at the Hosseini but he wasn’t practising in Iran because he didn’t have an opportunity and was afraid his family may find out and be at risk. However, in his statutory declaration he said he had only visited the Hosseinieh in Iran once however he also stated that ‘I would often sing at the meetings at the Hosseinieh’. These statements appeared to be contradictory. The applicant was unable to recall the name of the person who had introduced him to the order or dates when he was initiated, key points in his claimed faith journey.

125.   The Tribunal asked what the process for initiation or conversion to the faith was and he said there was no process and it was internal.  However, later when the Tribunal put to him that country information suggested that in order to be a member of the faith an initiation from a leader was required he said he had been initiated in Iran but he wasn’t practising there. He said this was on his visit to the Hosseini and he was initiated by the leader there.  The Tribunal did not find this evidence to be credible. Allowing for nuances of language and understanding, the applicant’s earlier claim that he was not practising in Iran was offered as both an explanation for the lack of attention from authorities there and the delay in joining practice in Australia.  Yet when contrary information was put to the applicant he claimed to have been a Dervish in Iran, though not a practising one. This was not consistent with his earlier statements before the Tribunal, or his evidence in his statutory declaration that after practicing in Australia he was ‘exposed to the religion more and more’ and to then called himself a ‘full practicing Darvish follower’.

126.   Further, according to the delegate’s decision when inconsistencies arose before the delegate regarding his account of the number of practicing Dervish followers in Iran (around 2000) and country information suggesting there were several million followers in Iran[26] the applicant sought to explain this difference distinguishing between practicing members of the faith and ‘supporters’, counting himself among the much smaller and identifiable minority grouping.  This was consistent with the submissions and evidence he gave to the Tribunal and the Tribunal found that explanation to be implausible given the applicant’s own evidence regarding his practice both in Iran and Australia which at its highest involved attending a Hosseini once and attending house gatherings with a small group of other followers. Given country information regarding the active practice of some members in Iran, including the information provided by the applicant,[27] the Tribunal does not accept that were there 2000 Iranians who counted themselves as the members of the faith the applicant would have been counted among them. The Tribunal considers the inconsistencies between the applicant’s evidence and country information casts doubts on his claimed involvement with the NGDO in Iran.

[26] DFAT Country Information Report, page 35.

[27] Human Rights Watch online article entitled “Iran: Over 200 Dervishes Convicted.

127.   The Tribunal also found the applicant’s evidence regarding the claimed incident with police in 2006 to be inconsistent and contradictory.  The applicant claimed to have been taken into custody and held by police for 2 days because he was ‘mistakenly’ suspected of being Dervish.  Before the delegate he said he was tortured and his head was shaved.  Before the Tribunal he said he wasn’t physically injured while he was held but he was slapped, hit and sworn at.  He said when he was released because his father came and vouched for him and that his father knew that he wasn’t Dervish.  He did not mention his head being shaved by the Basij. When asked what his father had said following the incident he said he said he had told him not to have long hair and that he should shave it off.  Further, it was around a year and a half after this incident before he left Iran.  This cast doubt over his claim that persecution from the authorities was one of the reason he left Iran and feared return.  Further, as noted in the delegate’s decision, the applicant was able to leave Iran on an Iranian passport without issue. He told the Tribunal none of his family in Iran have reported any approaches from the authorities over his activities since he left Iran. Again, this suggests he was not and is not of interest to the authorities due to being a member of the Dervish faith or for any other reason.

128.   Further to these concerns, the Tribunal considered the applicant’s delay in practising in Australia until several years after his arrival, is not consistent with his claimed level of commitment to the faith in Iran or his claim to have left Iran in part due to an inability to practise freely in that country.  The applicant claimed he had no time to seek out the Dervish community or practise Dervishism as he had to work to support himself and earn money for his visas. He said he was trying to establish himself here and after that he would have time. The Tribunal does not consider this explanation to be consistent with his claim to have fallen in love with the religion in Iran and believed with all his heart in the teachings and practice of the faith.

129.   The Tribunal also raised a concern that his significant delay in seeking protection cast doubt on the genuineness of his claims to have been harmed in Iran due to his Dervish faith and to fear harm there on return for that reason.  He said if he could have resolved the issues otherwise he would have because the process had destroyed his life and had caused problems like depression. When things didn’t work the way he planned he was thrown in this situation. He said he did his best to study and get his permanent residency through the graduate visa.  He wasn’t intending to seek protection.  When he was out of Iran there was protection so he didn’t need to apply for protection. He said that he didn’t think there was any risk he wouldn’t get additional student visas so he didn’t have a fear of not getting another visa. The applicant applied for and obtained several visas in Australia after leaving Iran. None of those was a permanent visa yet it was not until 2014 that he applied for protection, raising a fear of harm on return. In particular the Tribunal notes the applicant was unable to point to any change in his circumstances or the circumstances in Iran which may explain the decision to delay seeking protection until a short time prior to his third student visa expiring.  The Tribunal finds the first applicant’s failure to apply for protection earlier or to raise any fear of returning to Iran during his initial 6 years in Australia is an indication that he was not fearful of serious or significant harm on return to Iran for the reasons claimed.

130.   As noted earlier, the Tribunal was also concerned that there was no evidence to suggest the applicant had come to the attention of authorities due to being a member of the Dervish faith in Iran or Australia.  With respect to his claimed arrest and interrogation in Iran, the Tribunal is concerned about inconsistencies in the evidence and submissions in relation to this event. The applicant claimed he was stopped because he had long hair and was suspected of being a member of NGDO.  He claimed he was released because he was not a member of the NGDO at that time and his father vouched for this.  It is not clear how this incident which occurred when the applicant claimed not to be a practising Dervish supported a claim that he was at risk for being a Dervish on return.  The authorities released him on the basis that he was not a practicing Dervish, which it can be inferred is consistent with what he told them.  He claims to have been identified because of his hair which the delegate’s decision notes he claimed he kept short in Australia sue to work commitments.  This suggests he does not consider his hair length to be central to Dervish practice such as he might be likely to suffer such treatment again or that he would be forced to alter this characteristic  to avoid persecution.  In any event, though he claims to have have suffered serious harm during this questioning he did not leave Iran until some year and a half later. He did not suffer any further adverse attention from authorities despite his claim to have visited the Hosseini and been inducted as a member of the faith sometime after his arrest by the authorities.  Further, in submissions it was contended he had kept his hair short in Iran to conceal his NGDO faith, though he had also claimed to have been of interest because his hair, including (according to the delegate’s decision) at the point at which he obtained his passport from authorities to leave Iran. It was difficult to reconcile these positions.

131.   In any event, while the Tribunal is prepared to accept on the basis it is plausible that the applicant was questioned by the Basij or police for his appearance at some point in Iran, as he was not a practising Dervish at that time and has not suffered any further harm or adverse attention from authorities in Iran or since travelling to Australia the Tribunal does not accept he was detained due to being suspected of being a member of the Dervish faith or for any other reason which may place him at risk of harm on return to Iran.  In this regard the Tribunal notes the applicant was able to obtain a passport in 2008 (after the claimed incident), leave Iran without incident and renew that passport in 2012.  He testified that neither his mother nor siblings have reported any approaches from authorities since he left Iran including with respect to any religious activities engaged in by him in Iran or Australia.

132.   At no point since his claimed interrogation by authorities in 2006 has the applicant been approached by authorities regarding his religious activities. Further, despite claiming the family members of Dervish are targeted in Iran, the applicant does not claim that he or any member of his family has been targeted by or approached by authorities in Iran due to the applicant’s claimed membership of NGDO or Dervish faith since he left Iran. The Tribunal does not accept on the evidence that they would do so in the future.

133.   While the Tribunal accepts that the applicant may have been questioned by authorities due to his appearance in 2006, given the applicant claimed he was not in fact a practising Dervish at that time and was released without charge, the Tribunal does not accept his questioning was due to being a practicing Dervish or member of the NGDO.  Further, given the vague nature of his evidence regarding his detention and the lack of any evidence to corroborate his claim to have been held for several days and subjected to harm by authorities during his detention the Tribunal  does not accept this aspect of his claims. 

134.   Having regard to the credibility concerns detailed above, the Tribunal does not accept that the applicant is a practising member of the NGDO or Dervish faith in Australia or Iran.  The applicant was unable to offer any corroborating evidence to support his claimed involvement with the faith and his own evidence regarding his claimed engagement was vague and inconsistent over time and in certain aspects contradicted available country information.

135.   The Tribunal finds that the claimed fears of persecution on the basis of his religion are not genuinely held by the applicant.

136.   In any event, having considered the applicant’s claims and the evidence, the Tribunal finds that there is no real chance the applicant faces serious harm on return to Iran due to his religious association with the NGDO or Dervish faith from the Iranian authorities or any other person.

137.   The Tribunal accepts the applicant holds views which are critical of aspects of the Iranian regime and is desirous of maintaining what he considers to be greater freedoms in Australia, however he did not claim to have been politically active as an opponent of the Iranian government at any point in Iran or since being in Australia.  The Tribunal does not accept the applicant has been involved in Dervishism or any anti-government political activity at a level where his profile in Iran has put him at risk of harm in the past and the Tribunal does not accept that he would be involved at a level which would put him at risk of harm in the future.

138.   Even if the Tribunal accepted that the applicant is a member of the Dervish faith, which it does not, the Tribunal considers on the applicant’s evidence and country information that the applicant would not face a real chance of serious or significant harm from Iranian authorities on this basis.  Though country information documents instances of arrest and imprisonment of Dervish followers in Iran, the examples cited involved Dervish community members who were involved in active protests against the government. The applicant has not engaged in such activity in Australia or Iran and expressed no intention to do so in the future.  Country information suggested there are several million followers of Dervishism in Iran and while the applicant suggested there were only several thousand ‘members’ of the Dervish sect in the country the Tribunal does not accept he has demonstrated in any way he would be considered among a smaller subset of ‘members’ even if it were to accept such a distinction exists in Iran.  The large number of Dervish followers in Iran suggests that the risk for those who are not engaged in activities critical of the government is less than a real chance. On the evidence the Tribunal finds the applicant would only be considered a supporter of Dervishism and not an active member engaged in anti-government activities.

139.   Further, the applicant described his practice in Australia and Iran as ‘internal’.  He is a practising Shia Muslim who prays at home with a small group of fellow Shia.  He did not articulate any intention or plan to practise his faith differently in Iran.  His told the Tribunal his mother is aware of and accepting of his Dervish faith suggesting he would have family support in resettling in Iran.  The Tribunal does not accept he would be identified by or seriously harmed by Iranian authorities due to being a follower or supporter of Dervishism.

140.   Accordingly, the Tribunal finds that there is no real chance the applicant would face serious harm for his Dervish faith, real or imputed, or for any other reason now or for the foreseeable future from authorities in Iran.

Mental health issues

141.   The applicant offered some evidence of having been assessed and treated for depression and anxiety in Australia. While the applicant’s representative submitted the applicant’s mental health issues may impede his capacity to give evidence of properly recalled events, the applicant did not claim to fear harm on the basis of his mental health on return to Iran.

142.   The evidence from [Welfare Agency 1] provided that the applicant was suffering from symptoms of anxiety and depression and requested that ‘in consideration of [the applicant’s] emotional and psychological vulnerability’ be given with respect to the hearing scheduled in March 2021. The applicant did not attend that hearing.

143.   The applicant testified that the process of applying for the visa had caused him depression and anxiety.  The Tribunal acknowledges this may be the case.  However, there was no evidence that his health issues were impacting the applicant’s capacity to live and work in Australia or that they would impact his capacity to resettle in Iran. 

144.   At the hearing on 23 April 2021, the applicant was responsive, direct and fully engaged with proceedings.  He stated he had not been feeling the best for some time but was willing to proceed with the hearing and do his best.  The Tribunal encouraged him to ask for breaks if needed but also adjourned the hearing for a break during his evidence of its own volition.  The applicant did not seek any additional breaks. He gave a full account of his claimed experiences.  He told the Tribunal he had seen the psychiatrist earlier in April and was booked to see them again in June.  No evidence from the psychiatrist was provided.

145.   To the extent that the applicant relies on the [Welfare Agency 1] mental health report to explain a lack of recollection of facts relevant to his claims or inconsistencies in his account of key events over time, the Tribunal does not accept the report provides support for a finding the applicant is unable to accurately record events on this basis.  The Tribunal was mindful of the observations in the report regarding the applicant’s potential vulnerabilities in giving evidence in the fair conduct of proceedings.  However, there was no medical evidence that the applicant lacked the capacity to give evidence or that his mental function was impaired in such a way that may explain inconsistencies or contradictions in his account of his core claims. 

146.   The Tribunal notes that mental health issues can impact the capacity of an applicant to provide detailed and consistent evidence. The Tribunal is also mindful of the passage of time and the effect this may have on the ability of an applicant to precisely recall dates and events.  The Tribunal took care to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and evidence.  In considering these issues the Tribunal has also had regard to relevant judicial guidance and the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility published in July 2015.

147.   Nevertheless, the Tribunal remained concerned that inconsistencies or vague or contradictory evidence, including in relation to key events central to the applicant’s core claims for protection cannot not be explained merely by reference to his current mental health issues, the passage of time or poor recollection. 

148.   The Tribunal accepts that the applicant may continue to suffer anxiety and depression on return to Iran and that he may require mental health treatment and support in Iran. There was no evidence before the Tribunal that he would be denied access to mental health services in Iran. The Tribunal also notes that the applicant is in regular contact with his family in Iran, and that he has family support in Iran to assist him in his resettlement.

149.   In any event, the applicant did not claim that he would face serious harm on return to Iran by reason of his membership of any particular social group including people suffering from mental health issues. The Tribunal finds there is no real chance he faces serious harm on that basis, now or in the reasonably foreseeable future. Further, the Tribunal notes that inadequacy of mental health care services in a receiving country is not an intentional act or omission for the purposes of complementary protection provisions.[28]  Further, considering the applicant’s cumulative profile there was no evidence to suggest the applicant’s mental health issues would place him at risk of serious harm on the grounds of his religious or political beliefs or for any other convention related reason.   On the evidence presented, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason associated with his mental health.

[28]SZTAL v Minister for Immigration [2016] FCAFC 69.

Is the applicant a person in respect of whom Australia has protection obligations under the Refugees Convention?

150.   Based on the evidence before it, the Tribunal finds that the applicant’s claims that there is a real chance that, if he is returned to Iran, he would be persecuted by the Iranian authorities any other person due to being a member or follower of the NGDO or Dervish faith lacked credibility and are not well-founded.

151.   Further, based on the evidence before it, the Tribunal finds that there is no real chance that, if he is returned to Iran he would be persecuted on the basis of any mental health issues suffered by him.

152.   The Tribunal therefore finds that considered individually and cumulatively, the applicant does not face a real chance of serious harm for these reasons on return to Iran or in the foreseeable future.

153.   The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason. Therefore the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention and does not satisfy the criterion set out in s 36(2)(a).

Does the applicant meet the complementary protection criterion?

154.   Although the applicant’s written submissions contended complementary protection considerations did not arise in the applicant’s case, the Tribunal has also considered the application of s 36(2)(aa) to the applicant’s circumstances. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for a grant of a protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

155.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.

156.   The Tribunal has found that there is no real chance of serious harm to the applicant on the basis of his religion and in particular as a member of the NGDO/Dervish sect of faith or on the basis of his mental health.  The Tribunal has carefully considered each of the integers of the applicant’s claims of fear of serious harm, discussed above with respect to his claims for refugee protection, in the context of complementary protection criterion regarding the real risk of significant harm at s 36(2)(aa).

157.   The Tribunal did not accept the applicant’s claim to be a member of the Dervish faith.  In any event, based on the applicant’s claimed history and practice the Tribunal has found the applicant did not face a real chance of serious harm on the basis of his religion. The Tribunal has also found the applicant does not face a real chance of serious harm due to mental health issues or for any other reason. Further, considering the applicant’s cumulative profile there was no evidence to suggest the applicant’s mental health issues were such as would place him at risk of significant harm for any other reason.  

158.   Having considered the applicant’s circumstances singularly and on a cumulative basis and for all the reasons set out above, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s 36(2)(aa).

CONCLUSION

159.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

162.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Simone Burford
Member

freedom-of-movement-for-ailing-spiritual-leader/ where a number of the detainees have short
hair; See for example:

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1712797 (Refugee) [2022] AATA 649

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Cases Citing This Decision

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NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 983

SZMSF v Minister for Immigration and Citizenship [2010] FCA 585

Re Ruddock; ex parte Applicant S154/2002 [2003] HCA 60

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