1713290 (Refugee)

[2018] AATA 5068

1713290 (Refugee) [2018] AATA 5068 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713290

COUNTRY OF REFERENCE:                  Iran

MEMBER:Rodger Shanahan

DATE:4 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2018 at 8:42am

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Circuit Court remittal – political opinion – anti-government protestor – victim of detention and interrogation – Etilaat – Sepah – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 45AA, 65, 424A, 426A, 499

Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

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).

2. The applicant who claims to be a citizen of Iran, applied for the visa on 1 July 2013 and the delegate refused to grant the visa on 19 December 2014.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The matter is before the AAT after the Federal Circuit Court remitted the case for failure to comply with section 424A of the Migration Act.

5. The applicant failed to appear before the Tribunal on the day and at the time and place at which he was scheduled to appear to give evidence and present arguments.  Nor did he or his agent contact the Tribunal to explain his failure to appear. 

6. Pursuant to section 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

   CLAIMS AND EVIDENCE

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). 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.

8. 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).

9. 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.

10. 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’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

    Protection Visa Application Statement 29 May 2013

12. The applicant claimed that he was born an ethnic Turkish Muslim in Iran but that he had no religion.  He was an Iranian citizen.  In 2000 he was detained by a high-ranking Sepah official in [Location 1] with his girlfriend.  He was detained in solitary confinement for three weeks and then imprisoned in [named] prison for three weeks and then released on a bond.  He had to submit the title deed of a [property] to be released.

13. The day after he went to court to get his belongings back from Sepah.  He had been falsely convicted of [several] crimes but they could only prove one, which was having relations with a girl.  He was sentenced to [number] lashes and fined [amount] toman.

14. One day in 2010, four plain-clothed Etilaat officers came to their house, confiscated his computer and some document.  He was arrested and taken to a room, where he was detained for a week, and interrogated twice about the demonstrations.  He was accused of attending them but they couldn’t prove it; he had but denied it.

15. Eight months [later] he was again detained by two Etilaat officers for about three days and then released.  They did this in order to forestall any demonstrations against the regime.  [In] June 2011 the same two Etilaat officers detained him again for three days and he was accused of being involved with a [political] activist ([named]) who owned the [business] where he had been [working].

16. In mid-August 2011 four armed Etilaat came to his workshop, arrested him and took him to a building where he was detained for [number] days but only interrogated once.  He was shown photos of [him] attending [a] demonstration in 2009.  He couldn’t deny it and was mentally tortured.

17. He was bailed, but paid someone to extend the court date for about 8 months.  The same person told Him Etilaat were increasing his charges  by adding his previous arrests to increase his sentence. This person also told him that his life was in danger and he should leave the country.  He went into hiding until he could get enough money to leave the country

    Additional Statement 10 October 2014 (only additional material included)

18. He was detained by a Sepah general in 2000 who pointed his gun at the applicant and his girlfriend ([Ms A]) and demanded to know the nature of their relationship.  He stayed to protect her after the general said he could go.  The applicant asked who the person was and what authority he had and the general showed the applicant his ID card.  The applicant demanded more ID but the general didn’t show him and they got into an argument that lasted two hours.  The general told him to stand 20 metres away so he couldn’t hear what he said to [Ms A]. It was nearly dark and he approached the general and argued with him.  [Ms A] ran away, the general ran after her but couldn’t catch her and the applicant also ran away. He never heard from [Ms A] again.

19. The next afternoon the Sepah came to their house and told his mother that the applicant had to report to the Sepah office but he didn’t go.  Their telephone was also under surveillance.  The Sepah cane to their house two or three times for about two months but he always avoided them.  He didn’t go to his house or to his workshop.  He was eventually arrested leaving the house two months later.  He went to court and when the judge heard his story about the general the judge knew the applicant had been framed.  The second time the judge sent him to [prison], and a witness from the park corroborated his story so he was only sentenced to [number] lashes and [amount] toman fine.

20. When the problems occurred in 2010 as already alluded to, his brother arranged the court contact.  His workshop was closed by Amaken just before he left Iran.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant is a [age] year-old divorced Iranian male.  The Tribunal accepts that he is Iranian based on the copy of the applicant’s passport on the Departmental file.

22. The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is either genuine or ‘well-founded’. The applicant is required to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559) at 596:

    ‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for reasons of political opinion.  It remains for the Minister in the first place to be satisfied and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’

23. In this case the applicant did not attend his Tribunal hearing, nor did he provide any explanation as to why this was the case or request a deferment.  The hearing could have allowed him to provide further detail regarding his claims.

24. The information given in his application was not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution for a Convention reason in Iran either now or in the reasonably foreseeable future, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm.

25. The applicant provided insufficient information in relation to his alleged argument with a Sepah [officer] in [Location 1], such as why someone of this rank would pull a gun randomly on a couple walking in a park in Tehran.  He also gave insufficient information as to how someone who was allegedly subsequently charged with offences such as injuring and disarming Basij officers, stealing weapons and carrying illegal weapons would be tried in a district court rather than a Revolutionary Court. 

26. There was also a lack of information regarding his participation in anti-regime protests and the degree of attention he claimed to be under from authorities simply because he had [worked] for someone who was politically active.  Despite his alleged profile he was able to successfully depart Iran through Imam Khomeini airport in a valid passport in his own name.

27. In view of the insufficient information and lack of detail contained in the applicant’s claim, the Tribunal is not satisfied that the applicant ever had any dispute with a Sepah [officer] in [Location 1] and faced legal charges as a consequence of this incident, that he was ever a supporter of any anti-regime activity or that he took part or was actively involved in any anti-regime protests or that he was, is or would be of interest to the Iranian authorities for any political or other activity. 

28. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

29. I do not accept that there was any dispute with a Sepah [officer] in [Location 1] and faced legal charges as a consequence of this incident, that he was ever a supporter of any anti-regime activity or that he took part or was actively involved in any anti-regime protests or that he was, is or would be of interest to the Iranian authorities for any political or other activity.

30. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

31. 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).

32. 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).

33. 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

34. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

    2.        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).

    3.        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’).

    4.        In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.