1713052 (Refugee)

1713052 (Refugee) [2020] AATA 1744 (11 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713052
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:11 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 May 2020 at 1:31pm
CATCHWORDS
REFUGEE – protection visa – Iran – membership of a particular social group – conscientious objector to military service – study abroad and avoidance of military service on return – harassment by Basij – departure on false passport – religion – non-religious before conversion to Christianity in Australia – low-level membership and activity – medical condition and physical and mental health – status as returned illegal departee and failed asylum seeker – country information on military service and prisons – father’s ethnicity and country of birth – sister’s protection visa – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Iran, arrived to Australia [in] May 2011 as an unlawful maritime arrival together with his sister, brother and parents. At that stage the applicant claimed to be stateless. Subsequently on the 6 December 2011 the applicant acknowledged that he had submitted incorrect information and instead provided identify documents identifying him as an Iranian citizen. Since then the applicant has followed a long and convoluted pathway to the current application. The representative provided a summary:
·On [date]/05/2011, the applicant arrived in Australia as an Irregular Maritime Arrival.
·On 22/06/2011, the applicant made a request for a Protection Obligations Evaluation claiming that he was a 'Stateless Faili Kurd' person living in Iran.
·On 21/07/2011, a delegate of the Department gave a negative decision, stating he was not satisfied that the applicant’s parents claims met the definition of refugee and accordingly he was found not a person to whom Australia owed protection obligations.
·On 22/07/2011, the applicant’s negative decision was referred to the Independent Protection Assessment Office for an Independent Protection Assessment (‘IPA’).
·On 19/12/2011, the applicant provided evidence that he was an Iranian citizen and that he has undertaken tertiary education in [Country 1] (completed [a Subject] degree).
·On 28/05/2012, an IPA reviewer recommended that the applicant did not meet the criteria for a Protection (Class XA) visa as set out in s.36(2) of the Migration Act 1958 and he was not a person to whom Australia owed protection obligations.
·On [date]/12/2012, the judicial review commenced. The applicant appealed the IPA reviewer’s decision to the Federal Circuit Court on the grounds that the IPA reviewer had denied him procedural fairness.
·On [date]/05/2013, the Federal Circuit Court of Australia ordered that the recommendation by the IPA Reviewer had not been made in accordance with law and that the applicant had been denied procedural fairness. The Federal Circuit Court ordered the re-assessment of the claims for protection.
·On 19/06/2014, an International Treaties Obligation Assessment (ITOA) was commenced in respect of the applicant.
·On 04/09/2014, the applicant was found to be a refugee because he was part of a family group where his sister was found to be a refugee.
At this stage a new government came to power and in December 2014 passed the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. This Bill introduced some changes which affected the applicant including that as an unauthorised maritime arrival he was no longer eligible for a permanent visa. Instead, he could apply for a temporary visa.
·On 08/07/2016, the applicant lodged a valid application for a Safe Haven Enterprise (XA 790) visa.
·On 2/05/2017, the applicant was interviewed in relation to his claims for protection.
At this stage the applicant’s sister was found to be a refugee based upon the earlier information and the applicant’s parents were granted protection based upon being members of the same family unit as their daughter. The applicant and his brother had to proceed through the application process.
This review arises from the application from the Safe Haven Enterprise visa.
A copy of the applicant’s Iranian passport was available to the Tribunal. Based upon this document I accept that the applicant is a citizen of Iran.
The applicant applied for the current Safe Haven Enterprise visa (subclass 790) on 24 May 2016. A hearing was held by the Tribunal on the 10 January 2020.
The applicant claims to be in danger for reasons of being related to his sister and mother who have been found to be owed protection and have been active in protests in Australia against the Iranian regime, having converted to Christianity, his ethnicity, his non-conforming behaviour which includes owning and walking a dog in public, the length of his absence from Iran, being related to people who are friends with Western military personnel, being convicted of evading military service, his mental health condition, his physical appearance as a result of his [condition] and having to serve in the military despite having a conscientious objection.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Mental health
The applicant provided three brief documents regarding his mental health. The first two are from a psychologist dated [November] and [December] 2012. The psychologist notes that a more detailed submission will be available when the applicant completes six sessions. No such report was received by the Tribunal despite five months having passed from the last report. The two initial reports state that he has been assessed as exhibiting symptoms of ‘extreme clinical depression’, ‘serious symptoms of anxiety’ and that he is at ‘some risk of harming himself’. The third document is a medical certificate which describes the applicant’s physical ailment, discussed further below, as well as that his mental health is impacted because of the physical ailment.
As this material was available to the Tribunal prior to the hearing I reviewed the Tribunal’s Vulnerability Guidelines and at the outset of the hearing explained to the applicant that he had an opportunity to request additional breaks whenever he felt the need. In receiving his evidence I found the applicant to be coherent and lucid.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant stated that he lived in Tehran from Grade 5 through to when he quit school at the age of [age] years. The applicant stated that he didn’t do military service but instead, went to [Country 1] to study. He claimed that he didn’t get an exemption from military service. He said that he was in [Country 1] from 2007 through to 2010. He claims that he never visited his family in Iran while he was in [Country 1]. He claimed that the evidence of his travel is on his old passport, which he claimed had been taken from him by the Basij when he was caught walking a dog (discussed further below). He then returned to Iran before travelling to Australia where he arrived in May 2011. I accept the above information as fact.
I put to him that a previous representative submitted a decision record from an earlier iteration of his review that states he arrived to Iran in May 2010. He did not disagree.
The applicant claimed that he was not raised in a religious family. He claims that he was never taught about religion or religious teachings. Religious matters are very important for the state in Iran. He stated that his father did not agree with the government and the state. He claimed that people who have a deviation from religion are always at danger. He claimed that he was forced to pray on a daily basis while at school. He claims that he did not understand the meaning of those prayers.
I put to the applicant that he arrived to Iran in May 2010 after completing studies in [Country 1] and then stayed in Iran for one year and yet despite being over the age of 18 he was not conscripted. He responded that when he entered the airport in Iran, he was advised that he could not leave the country. I asked again how he could remain for one year in Iran and not be conscripted. He said that he is not familiar with Iranian law, but he believes that if one hasn’t done military service then they won’t be provided services. This encourages Iranians to do military service. For example, if you want to buy something that needs documents, you won’t be able to buy it until you complete military service.
The applicant is facing several health challenges. He has been diagnosed with extreme clinical depression (Tribunal file 39). The applicant has [condition] (According to the Australian government [this] is a condition [details deleted].)[1] The applicant has been assessed by a doctor to be unfit for work due to [the condition] impacting on mental health. The same certificate notes that the condition can be improved (Tribunal file 62).
[1] [Source deleted].
He claims that mental conditions are not valid exemptions from military service. He said that his mental health challenges don’t prevent him from doing activities that soldiers must do. He claimed that living in a highly compact environment would lead him to suffer due to the added mental and emotional pressures. In military service, he claimed, shouting, threatening and swearing is a part of normal life. He said that his will is weak and that his muscles are weaker than a normal person’s. He added that he hates being in a crowded and noisy place. He said that for those in the army the mental health of individuals is not important but rather the religious belief. He doesn’t believe at all in Islam.
I put to him that if he is found to be not medically fit to a physical role then he would have to participate as other Iranians do but possibly in an administrative role. He said that he has heard of these roles but claims that those roles are given to people with high education or from martyr families or those with connections.
I asked the applicant why he saw being forced to have tests to check his [condition] as humiliating and degrading if he had the same tests done in Australia? He responded that because of his [condition] he may be subject to ridicule or humiliation. He said that doctors would ridicule him, he knows, as it is normal in his culture.
I put to the applicant that his condition is not uncommon. [details deleted].[2] He responded that unfortunately he has been suffering from this condition from the time he was a teenager. He claimed that it has had an effect on his emotional and mental state. For him, he claims that the severity is greater than for others.
Evidence relating to his claimed conversion to Christianity
[2] [Source deleted].
I asked the applicant to describe his faith journey and in particular how he came to believe in Christianity. He responded that he had always attended government schools in Iran in which religious classes were sources of jokes, they would tease the teacher with questions. When the teacher would realise that the questions were meant to undermine religion he would not answer. Gradually, he claimed, while at school he came to realize that Islam is not a religion. He wondered how a religion could be able to attract so many people based upon bloodshed. In Iran, he claimed, Islam was imposed upon them. Before that they worshipped fire. He stated that he was born a Muslim but did not believe in it. He said that his family wasn’t a religious family at all.
When he moved to [Country 1], he said that he felt freer. He claimed that he would walk through a church every few months with his sister while they were in [Country 1], but he didn’t attend mass.
I asked the applicant why he left his previous faith and how Christianity was different to Islam. He responded that Islam is not a religion from God. A religion that is based upon killing is not what God wants. He stated that Islam does not have one percent of what Christ says. Forgiveness does not have any meaning for those Muslims who are really committed. He said that there is no sign of peacefulness in Islam. The applicant stated that the main prophet in Islam is proud of so much killing and exhibits no shame in marrying a nine-year-old girl. He said that this kind of behaviour will affect the mentality and behaviour of the people who follow that religion.
The applicant claimed that he initially strongly believed in a God and then when he knew of Christianity, he understood it to be a religion from God. He clarified that although his family weren’t religious, they believed in a God and the other world and that if you did something wrong that you would be accountable for it. He claimed that Christianity complemented their beliefs.
After he left detention in Australia, he said that he began to study and read about religion and when he started attending church and became familiar with the life of Jesus Christ and his miracles he claimed that there was no way that he could not believe in him.
He claims to have found his first church by following his sister and then he attended the church that his father attended. He also knew that his brother attended a church but there were a lot of people there and hence he didn’t like joining his brother. Then he found [Name] Church. He said that it is well known to be a dark church with loud music. He said that he liked to go there as he was less visible.
He stated that his father and mother lived apart, probably since leaving detention. He claimed that this was the time that his father started gambling.
He said that he would sometimes go to [Name] Church and sometimes to his father’s church in [Suburb]. A letter was submitted to the Department which was from the Lead Pastor at the [Suburb] Church stating that the applicant has ‘recently attended [Suburb] Church. He has met with and participated with members of our Church community for prayer, bible study and [name] ministry.’
In 2015 he stated that he stopped going to church because he started to hate crowded and noisy places more than before. He said that he couldn’t tolerate them.
He claimed that he had introduced some newly arrived Iranians to [Name] Church.
He claims that he attended his father’s church where after service people usually talk to each other. One day he went to talk to a middle-aged person who said to him that he thought the applicant was [deleted]. This person asked the applicant [deleted] and started laughing. He did not respond and just left. Because of this he stopped attending [Suburb] Church and believes that it contributed further to him fearing everything. He thought that he was very visible, and this confirmed his fears. He claimed that that is why he stopped going to [Name] Church as well.
I put to him that the letter from [Suburb] church, dated [May] 2017, states that he ‘recently attended’. Why would it say that if the last time he attended was in 2015? He said that he attended for his sister’s marriage ceremony. I read to him from the letter which states that he attended prayer, Bible study and [name] Ministry. He said that the [name] group was with a small group of people that he knows, and his father insisted that he attend though he didn’t attend regularly.
The applicant stated that [Name] Church has some video and audio programs. On Sundays he said that you can hear and watch those programs from your own home. He claimed that he has the app on his mobile phone.
The applicant stated that religious beliefs are important and most importantly to believe them from the bottom of your heart. He said that he attends to his religious beliefs as much as he can. He doesn’t have a strong memory nor is he good at studying but still studies the Bible and watches movies about Christianity.
He claimed that while he was living in Melbourne a famous pastor [visited] Australia and stayed at a friend of the applicant’s house, so he attended to meet with the preacher.

I asked the applicant how his life has changed since he became a Christian. He responded that he always tries to remember the Ten Commandments. He said that his behaviour has changed as a result of a significant amount of peacefulness. He said that he has a good feeling and respects other people. He stated that being and living in peace is the most important gift you can get from Christianity. He said that when his mental health recovers he hopes to be able to learn more about Christianity.
I asked how he aspires to change his life to become a good Christian. He said that as Jesus Christ gives people peace, he hopes to be able to study more and learn more and improve his mental health. He claims that then he will seek baptism.
I put to him that he never mentioned that he prays. He said that due to his mental state, he still looks at everything negatively. He has lots of negative thoughts. He does not have a will or resolution to pray. He said that he has asked his father’s friend to pray for him and he claimed to have asked his father yesterday to pray for him.
The applicant stated that he does group activities with his close friends and that he doesn’t go out with unfamiliar people. He said that most of his close friends know Christianity very well. They do things such as host visiting pastors.
The applicant explained that he is not interested in social networks. He said that he tries to study and read about Jesus and he has many Iranian friends who believe in Jesus.
The applicant fears that reading about Christianity in Iran will get him killed. I put to him that in Iran there are apps in Farsi for the Bible, he could continue to read it from home. I put to him that he hasn’t had a need to attend church in Australia where he is free from fear and so wouldn’t be exposed to risk in Iran. He responded that in Iran people are scared fear their own shadows.
I accept that the applicant has genuinely embraced Christianity in a way that is privately practiced. The applicant would not proselytise, he would not seek to lead a church, but he would speak his mind about his conversion to the Christian faith if pressured.
Evidence relating to his departure from the country on a false passport and events leading to the loss of his passport
The applicant claimed that when he arrived in Iran from [Country 1] in 2010, he was told that he was not allowed to leave the country.
Upon return he claimed that he had an incident with the Basij while walking his dog. It was the second time he was caught by the Basij for walking the dog. Whereas the first time he claimed that they assaulted him the second time they seized his national ID card, gave him a warning and told him that they would need to kill the dog. He said that he doesn’t know why he was let go, maybe they were very busy. After this incident he then began looking for a false passport to leave. It coincided with problems that his sister faced arising from her attendance of house churches.
He claimed that the applicant’s family sought a way to obtain a false passport for him as he was unable to leave the country due to not having completed his military service. The applicant claims that they found someone to prepare a passport for him. He doesn’t know who, but he knows that it cost between $[Amount 1] to $[Amount 2]. They obtained the shenasnameh (a birth certificate) of someone who had already completed their military service. He claimed that his family were told to apply for a national ID card using that birth certificate. After he got the national ID card they were then told to apply for a passport. It was at this stage that the applicant became involved. He made an appointment and when he attended, he gave the necessary information and it was processed. Then the passport was posted to him.
I have some doubts as to the applicant’s story as at one stage he claimed that his passport was taken and another that it was his national ID. He claimed that he sought, in part, to leave the country as he was approaching military age and yet he was already [age] years of age at that time. Nevertheless, despite these issues I give the applicant the benefit of the doubt and accept that he exited Iran on a falsely obtained passport.
Considerations – Military service
Students are eligible for deferment of military service. They are expected to enter military service within six months after finishing their studies. In practice, this period can be extended due to administrative delays. If a person does not report to the authorities within this timeframe, he is considered a draft evader or objector. There is no alternative civilian service in Iran. Conscientious objection is not accepted under Iranian law. The evasion of military service is punishable under Article 40 of the Armed Forces Penal Law by imprisonment of six months to two years, or an extension of the service.[3]
[3] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Iran: Political Opposition Groups, Security Forces, Selected Human Rights Issues, Rule of Law: COI Compilation, (§7.9.5: Military Service), July 2015, available at: >
The 2020 DFAT report on Iran notes:
Draft evaders are liable for prosecution. An individual who evades military service by leaving the country must complete their service on return if they are under the age of 40. For those over 40, a fine is the most common punishment. Evading military service for up to a year during peacetime or two months during war can result in the addition of between three and six months to the total length of required service. More than one year’s draft evasion during peacetime or two or more months during war may result in criminal prosecution.[4]
This information aligns with what was provided by the representative.
[4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Iran’, 14 April 2020 at [3.163]
According to the website of the Iranian Embassy in The Hague, there are four main types of medical exemptions from military service available:
According to regulations of Medical Exemption of Military Service, those liable to the duty of service can be generally categorized into 4 main groups in terms of their conditions:
·     Individuals being in a state of complete physical and mental Health and hence entirely capable of being drafted to the mandatory service period.
·     Individuals who have a handicap or suffer from a certain illness and are thus not in a complete state of health, however yet well capable of carrying out non-combat/military-related services in offices
·     Those who due to weak disposition, growth deficiency or suffering from physical or mental illnesses are temporarily not capable of serving for the mandatory period.
·     Those who due to handicaps or mental and/or physical illnesses are permanently unable to be drafted for mandatory service period.[5]
[5] ‘Medical & health-related exemptions’, Iran: Embassy of the Islamic Republic of Iran, undated (accessed 30 March 2011), CX261740.
It is unclear whether the applicant’s ailments could be used as a mitigating factor in a military court proceeding. Without such information I err on the side of caution and find that the applicant would be prosecuted regardless of his health conditions.
Based upon the above country information I accept that the applicant will face criminal prosecution. For the applicant’s circumstances, was he to voluntarily surrender to the authorities, the consequence is two to 12 months imprisonment.[6] The same source states that even after serving time in prison the deserter is required to complete their military service or risk not gaining their certificate of completion.
[6] ‘Refusing to Bear Arms: A worldwide survey of conscription and conscientious objection to military service: Iran’, War Resisters International (WRI), 5 April 1998, CX208282.
The consequences of remaining in Iran without a completion certificate includes to, ‘lose social benefits and civic rights, including access to government jobs and higher education, and the right to establish a business. The government may also refuse to grant draft evaders drivers licences, revoke their passports or prohibit them from leaving the country without special permission.’[7]
[7] ibid
Considering the length of time the applicant has evaded conscription I find that he faces a real chance of being arrested upon arrival and as such both serving time in prison and being conscripted into the military.
In considering whether he would face serious or significant harm in prison I turn to country information in the latest DFAT report which states that prison conditions are widely considered to be poor. It refers to overcrowding, prisoners sleeping on floors, insufficient food and poor medical treatment.[8] Another report notes that the prison population is estimated to be 3 times its capacity.[9] I accept that such conditions amount to serious and significant harm to prisoners.
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iraq, 14 April 2020 at [5.18]
[9] Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, at 14 August 2017 at [81]
I now turn my mind to consider whether the applicant faces harm arising from these conditions for the essential and significant reason of race, nationality, religion, political opinion or membership of a particular social group. There is no suggestion that the above-mentioned conditions are applied discriminatorily. Instead, country information indicates that additionally harsh treatment such as the intentional withholding of medical treatment is applied discriminatorily for political prisoners, but I have found that the applicant would not be considered political.[10] As such I find that the applicant does not have a well-founded fear of persecution because s.5J of the Act requires that one of the reasons listed in s.5J(1)(a) to be the essential and significant reasons for persecution.
[10] ibid
Similarly, in considering whether the applicant faces a real risk of significant harm arising from the prison conditions described above I note that an element of intentionality is required. Significant harm is exhaustively defined in s.36(2A) of the Act. It includes being arbitrarily deprived of life; the death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. I find that he does not face the death penalty because his profile is not such that would lead to him being of interest to authorities. With regards to torture, cruel or inhuman treatment and degrading punishment there is a requirement for an intentionality to cause harm by a person. The prison conditions alone, while making the prisoners victims of inhuman treatment lack the element of intentionality to cause the harm. Poor prison conditions are a not unexpected outcome of a country that has been under severe sanctions for a number of years.
Cumulatively
I now turn my mind to consider the applicant’s circumstances cumulatively. I note that the applicant upon arrival to the airport will be identified as a deserter as well as someone who departed Iran on a falsely obtained passport. At this stage the applicant will be flagged as having departed Iran but there being no record of his departure. He will be asked about how he left. Concurrently it will become apparent that the applicant has not completed his military service. Country information suggests that he will face a fine for departing illegally[11], but regarding his military service, whether he is arrested immediately, voluntarily submits or is arrested later after entering the community, I find that he will at some stage in the reasonably foreseeable future face a military court.
[11] UK Home Office, ‘Country Information and Guidance: Iran: Illegal Exit’, July 2016 at 2.2.3
A future return differs to the past as the amount of time that he has avoided military service is now considerable and in addition he has proven his willingness to break the law to avoid conscription by departing Iran illegally. This would present a different situation to when he returned to Iran in May 2010 and was simply told that he could not leave the country until he completed his military service.
The question to be considered is whether through the process of being detained, interviewed/interrogated, charged and convicted, and supervised in a prison as he serves his sentence, (I find he would be sentenced to a term in prison) the applicant faces a real chance or real risk of being harmed.
I find that factors such as but not limited to his relatives taking pictures of themselves alongside Western military personnel, his family members converting to Christianity or having at one stage in the past claimed to have converted to Christianity would not be known to people who would be in a position to potentially cause him harm. Nor would they be sought out by intelligence services as the country information quoted earlier notes the Iranian government does not have an interest in the activities of failed asylum seekers abroad unless they are of a political nature. I find that he is not a person of interest for political reasons. I find that he will be processed quickly and without much attention as are thousands of other prisoners in Iran.
What distinguishes the applicant and could lead to him being intentionally mistreated in prison extrajudicially I find to be his place of birth, a potential to misconceive his ethnicity, his extended time abroad, his condition and his Christian conversion. I note that the applicant was born in [Country 2] to an Iraqi father. He has spent only a few years in Iran with the rest of his [age] years abroad. He has turned his back on Islam and embraced Christianity.
To begin to consider whether the applicant faces a real chance of serious harm I turn to the circumstances in Iranian prisons. According to the United Nations Special Rapporteur a total of 69 per cent of 133 interviewees reported having been held in solitary confinement for periods ranging from a few days to nine months. They reported being refused access to fresh air, books or a pen and paper. Nearly all reported being interrogated and that the interrogators attempted to coerce detainees to confess to various activities. In nearly all cases the former detainees reported being subjected to torture or ill-treatment during the interrogation. In 90 percent of the cases the interrogators were claimed to have subjected the detainees to psychological abuse, mock executions, threats to life, sexual harassment, verbal abuse and threats of torture. Some 76 percent claimed that they received severe beatings to the head and body. Some reported being subjected to suspension and pressure positions, sexual molestation, electric shocks or burning.[12]
[12] Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, 18 March 2014
In a follow up report by it was noted, ‘Continuing reports regarding the use of psychological and physical torture to solicit confessions indicate the widespread and systematic use of such practices. Reports of amputation and corporal punishment (e.g. flogging), which are considered incompatible with article 7 of the International Covenant on Civil and Political Rights, were also received.’[13]
[13] Situation of human rights in the Islamic Republic of Iran: Note by the Secretary-General 27 August 2014 at [16]
The most recent report by the Special Rapporteur states, ‘Reliance on physical and mental torture to coerce a confession (mostly during pretrial detention), the use of prolonged solitary confinement and the denial of access to proper and necessary medical treatment for detainees continue to be widely reported…Iranian officials also admitted that prisoners experienced a serious hygiene problem as well as a lack of proper medical care…In many cases, the deprival of medical care is used as a form of punishment…Reports also indicate that inmates are often subjected to ill-treatment and torture by interrogators and guards, including blackmailing, beating and physical abuse, verbal abuse, interrogation for long hours, sleep deprivation, forcing heads into toilets, and solitary confinement.’[14]
[14] Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, at 14 August 2017 at [75], [82]-[84]
While the applicant’s profile is not of interest to the authorities such that they would expend resources to investigate his family or his activities including to prosecute him for his actions abroad, I do find that within an environment that appears to lack restraint against extrajudicial power being wielded, where actions are taken by prison authorities that are in contravention of Iranian law and the constitution,[15] where Iranian authorities themselves appear little interested to follow up on reports of abuse the applicant is at risk of extrajudicial harm.
[15] Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, 18 March 2014 at [25], [32]
Because the applicant’s condition I accept that he would be a target of ridicule. That he was born to an Arab father, a trait that would trigger anger among some officials considering the long but also recent conflict; that he has embraced Christianity, which is seen as a national security threat to the state[16]; that he has avoided military service because of his father’s ability to pay for him to study abroad, are all reasons to anticipate that there is a real chance that he would face serious harm. I find that these traits would be interpreted by a persecutor as being political traits and as such he would be imputed with a political opinion of being anti-regime. For this reason, I find that the harm the applicant faces is for the essential and significant reason of political opinion and that it would systematic and discriminatory harm.
[16] Department of Foreign Affairs and Trade, DFAT Country Information Report: Iran, 14 April 2020 at [3.52]
I have considered whether the applicant could seek state protection but as the persecutor would be of the state and there is limited evidence of the state pursuing prosecutions against extrajudicial violence within prisons, I find that state protection will not be afforded to him.
While the pathway by which the applicant would find himself in prison would amount to a law of general application, I note that the harm he faces while in prison is extrajudicial and as such is not a law of general application.
There is no possible or acceptable modification of behaviour for immutable characteristics such as where he was born and his health condition or for historical pasts such as having lived abroad for so long.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Denis Dragovic
Senior Member

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

[2020] AATA 1744

11 May 2020

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