1722396 (Refugee)

[2021] AATA 1401

1722396 (Refugee) [2021] AATA 1401 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722396

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE:21 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2021 at 2:13pm

CATCHWORDS
REFUGEE – protection visa – Iran – Federal Court remittal – political opinion – participation in anti-government protests – attendance at protests in Australia – ethnicity – Ahwazi Arab – – arrested, detained, beaten and tortured – discrimination in employment and extortion – returned failed asylum seeker – country information – credibility – inconsistent evidence – preferred language and issues with interpretation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1), 36(2), 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
CLS15 v Federal Circuit Court of Australia [2017] FCA 577

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

1. 7This 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 claims to be a citizen of Iran. He arrived in Australia without any supporting documents but subsequently provided copies including a national identity card, birth certificate and driver’s licence. As the applicant speaks Farsi and has provided these documents, I am satisfied that the applicant is a citizen of Iran.

3. The applicant applied for the visa on 21 December 2012 and the delegate refused to grant the visa on 17 December 2013.

4. The matter is before the Tribunal because of a Court order. The earlier, differently constituted Tribunal’s decision was upheld by the Federal Circuit Court but remitted by consent upon appeal to the Federal Court for the reason that the Tribunal denied the applicant procedural fairness. Specifically, the Tribunal did not put the applicant on notice of an issue under review, namely the issue of the applicant’s ethnicity, yet the Tribunal made adverse findings which the court found to be central to the Tribunal’s decision not to remit the application for further consideration by the Department.

5. The applicant appeared before the Tribunal on 19 March 2020, 10 December 2020 and 22 February 2021 to give evidence and present arguments.

6. This chronology requires some explanation. The earlier, differently constituted Tribunal had made adverse findings based upon the applicant requesting a Persian interpreter (file [number] f.77) which formed a partial basis of the remittal by the Federal Court of Australia. The applicant wrote to this Tribunal in June 2019 explaining that the language he is most comfortable with is Ahwazi Arabic and secondly Persian Farsi. The applicant claimed that he had requested an Ahwazi Arabic interpreter at the previously constituted Tribunal.

7. In advance of the Tribunal hearing in March 2020 the applicant was sent a hearing invitation form which included an opportunity to express which language he preferred the hearing to be conducted in.

8. Shortly thereafter the Tribunal, as with the rest of Victoria, entered lockdown and as such the hearing was unable to proceed. Outreach was undertaken in May 2020 to prepare for a video hearing but upon the request of the representative I decided to postpone the hearing until in-person hearings could resume. This was not until December 2020.

9. At the December hearing an Arabic interpreter was provided by telephone. Some concerns were raised with the Tribunal officer prior to the member entering the room that the Arabic of the interpreter was not Ahwazi Arabic. Once I entered the room and the hearing began the interpreter begged to differ. She emphasised her experience with Ahwazi Arabic but as such information was not requested by the Tribunal and she had not ceased to speak when asked to, I ended the call mid-sentence.

10. I explained to the applicant that the primary concern is whether he could convey his message. I explained that I would not give weight to the language that the evidence was communicated and that I find it unreasonable to infer an insight into an applicant’s sense of identity based upon the language that is used at the Tribunal. I emphasised that we need to ensure a fair manner for the applicant to convey his evidence. I asked which he spoke better, Farsi or Arabic. He said that he spoke them to the same level. He said that he did not have an issue with Farsi but that because the previous member had placed weight on his use of Farsi he wanted an Ahwazi Arabic interpreter. I suggested that the best course of action would be to use a Persian Farsi interpreter as it would avoid issues arising from different dialects while noting my acknowledgment that no weight should be placed upon the use of Farsi. The applicant and representative discussed the matter privately and subsequently agreed on these terms.

11. The Tribunal sought and found a Persian Farsi interpreter who appeared by telephone and the hearing proceeded with the assistance of an interpreter in the Persian language.

12. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

    RELEVANT LAW

13. 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

14. 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).

15. 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.

16. 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.

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

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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

24. 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’).

25. ‘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.

26. 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

27. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Evidence and findings of fact

29. At our first hearing the applicant claimed that his political activities began in 2005. He claimed that his friends asked him to participate in a protest against the government, which he did. Following the protest at about 4 or 5 am he claimed that the Basij and Sepah came to his house and arrested him. He claimed that he was put into prison and that his father had to bribe people to get him out. He claimed that he was in prison for one and a half months. He claimed that he was tortured and that his torturers wanted to know why he was participating and who invited him. He said that he explained to his captors the reasons why he had protested which was that his region, the home to Iranian Arabs, was under supported.

30. At the second hearing I put to him that in his statutory declaration dated 12 December 2012 he wrote of his past in Iran and specifically that he attended protests in 2005 but not that he was arrested. I noted that he was supported by a representative at the time when he wrote the statutory declaration. He claimed that he had mentioned being arrested, tortured and remaining in prison. I read to him what he had written, ‘I attended the second day of these protests. Following the arrests, I heard reports that there were between 15 and 20 mortal casualties. I was lucky to not have been injured.’ I noted that this was all he wrote. He said that he believed that he had mentioned it previously.

31. It is of concern that the applicant’s recollections of his first involvement in a protest leads to substantial disparity in the evidence. In his hearing at the Tribunal he claimed that he was detained for a month and a half and yet when he first detailed his experiences in the asylum claims context after arriving in Australia with the assistance of a migration agent, he did not mention what amounts to the longest stint in detention that he has claimed at any stage through his application and review process.

32. At our first hearing the applicant stated that in 2009 the protests were increasing in severity including damaging property. He described the 2009 protests as being big. He said that he was arrested while praying at a school. He said that he was arrested after only one day at the protest. At the second hearing I repeated his claim that he was arrested once at a school to which he concurred and named the school as [name]. I then noted at the second hearing that in his statutory declaration from 2012 he had stated that following his participation in a protest in mid-2009 he was arrested while in his home in his bed and not while praying at a school. I asked him why in a detailed statement he had said that he was arrested at night and taken from his bed whereas at the hearing he had confirmed that he was taken from a school while praying. He said that maybe, as they had asked a lot of questions, it all got mixed up.

33. I find it difficult to believe that the applicant could confuse being taken at night from his bed with being taken from a school while praying. These are not nuanced details that can arise from poor recall, but rather two completely different recollections. The applicant did not claim that both occurred on separate occasions but rather simply claimed that there was a mix up somewhere when the questions were asked. This is of considerable concern.

34. Regarding the applicant’s 2009 activities, as described above, the applicant had at our first hearing mentioned that he had protested and been arrested only once that year. When this was put to him again at our second hearing he concurred. I then put to him that in his statement from 2012 he had written that he was arrested twice. I put to him that he had stated that he had participated in a demonstration in mid-2009 after which he was arrested in his home and abducted from his bed and then in late 2009 he was protesting again and that he was arrested again at night from his home. I asked why he had written that he was arrested twice but now he was saying it was only once. He responded that he wasn’t sure if it counted when they came to his home and harassed him and asked for a bribe, nevertheless he reaffirmed that he had been arrested only once.

35. I put to him that what he had written wasn’t just harassment and therefore may be a reason for the discrepancy, but that he was, according to his statutory declaration, abducted, blindfolded, beaten and tortured. I read to him from his statutory declaration regarding his second arrest and detention in late 2009: ‘They forced me to eat copious amounts of food and hang me upside down so that I would regurgitate my stomach contents. They locked me in a small room and regularly beat me.’ The statement states that he was held for about 10 days and then his father bribed the authorities to let him out. I put to him that I found it hard to believe that he could have forgotten this. He responded by saying that every time he was arrested, they did stuff like that, hanging him up by the feet and using that style of torture. But this claim that they did that every time to him and that is why he omitted it is undermined by the fact that he reinforced that he had been arrested only once.

36. I put to him that he didn’t mention at our first hearing that he was tortured in 2009. He responded that he was only answering questions that I was asking at the hearing. I noted that I had explained what a protection visa was to him and that I asked open ended questions to allow him to tell me what happened. I added that I would have thought that if he was tortured in that way that he would have described it in that way at the hearing. He said that he was answering every question, but then inferred problems arose at earlier stages of the review process because of the use of an interpreter which leads to conversations stopping and starting. He once again confirmed he was arrested only once in 2009 and that it was at a school.

37. I do not accept that the use of an interpreter would be the cause of the omission of an event, nor is it relevant in this instance as the inconsistency is between his written statement and the evidence he was providing at the current hearing. While it could be possible that after a period of 10 years the applicant can’t remember whether he had participated in one or two protests I find it difficult to accept that he wouldn’t remember whether he was detained once or twice, especially if he had been beaten on both occasions and in one instance tortured in the way he described in the 2012 statutory declaration. I have also considered whether the applicant could be conflating events between years. I note that the events of 2005 differed significantly in substance and how he described them from those in 2009 and as we went through his experiences chronologically rather than in a circular fashion that may have confused the applicant, I don’t accept the possibility that he was conflating events across years. Overall, I find the applicant’s omissions and inconsistencies deeply vexing.

1. At our first hearing the applicant said that his next political activity was in 2011 and that between 2009 and 2011 he didn’t protest in any large groups, instead, he went to house meetings, but if he had attended he would have covered himself and tried not to be identified. I noted to the applicant at the second hearing that in the statutory declaration he had stated that he was arrested six to seven times through the same period of 2009–2011, each time being abducted at night and usually detained overnight and beaten. In response, he said that what he had actually meant when writing that was that he had been arrested six to seven times since he had started protesting and not just between 2009–2011. I put to him that it’s not what he actually wrote. I read to him from his statement: ‘Over the course of the next two years I was arrested by the persecuting Sepah Officer approximately six or seven times.’ (italics added) I note also that the paragraph is under the heading, ‘Late 2009 – Apr 2011’. He responded that there was a time that he accidentally hit the nose of one of the people who raided his house but did not respond to the issue at hand.

2. I find it of great concern that the applicant in one instance claims to have been detained six to seven times across a period of approximately one and a half years (late 2009 – Apr 2011), including being beaten at some instances, and yet these claimed detentions were not mentioned at the hearing when he spoke of what happened between 2009 and 2011. As noted to the applicant earlier the questions I had asked at the first hearing were open ended and the context in which they were asked was clearly explained. I note that the applicant was assisted by a representative during the Departmental stage when he wrote the statutory declaration as well as during the Tribunal stage. The inconsistency of recollection between the two occasions is of concern.  

3. At our first hearing the applicant explained how in 2011 there were large protests and he was identified and arrested in the morning. He said that he was arrested in his house, taken to the same building as before and detained for 3–4 days. He said that they insulted him, harassed him and hung him from the ceiling.

4. At our second hearing I specifically asked if he had attended the 2011 Day of Rage protest. He said that he had attended and that it was really bad. I put to him that at the last hearing he said that he was identified as having participated in the protests to which he agreed that that was the case. I then referenced the statutory declaration he had made and noted that he had specifically written, ‘I did not attend [the protests] for fear of repercussions,’ the words being under the heading, ‘Apr 2011: Ahvaz day of rage’. He responded simply by stating that he had attended in 2011. The applicant explained that the Day of Rage protests are annual protests. No plausible explanation was given by the applicant as to why he would have explicitly stated that he did not attend the protests in his written statement and then subsequently claimed that he had at the Tribunal hearing. This inconsistency is of great concern when considering the applicant’s credibility.

5. The applicant described a confrontation he had with a Sepah officer who he claims had regularly blackmailed his father and at one stage raided their home late at night in such a way that it led the applicant to lash out and break his nose. He claimed that his family offered to pay for the surgery to repair it. He claims that this same officer has subsequently harassed his mother on two occasions, the last being either ten months ago or more. When I asked at the first hearing whether the applicant had hit any government official, he responded that he had not, other than this incident at his home, a claim which was not included in the applicant’s statements to the Department at the beginning of his application process. I asked whether he had ever run someone over in a car to which he said that he had not. At the second hearing I asked again and this time he clarified that he had seen the same Sepah officer once on the street which enraged him, so he attacked him. I again asked him to confirm if he had harmed any other official to which he said that he hadn’t. The applicant specifically stated that he didn’t hit the Sepah officer or anyone else with a car but rather pulled up from behind him and attacked him.

6. I put to the applicant that when he was giving evidence at the prior differently constituted Tribunal hearing he talked about attacking two people just before he left for [Country 1]. I put to him that it seems that the two were separate incidents. The audio records the applicant as stating:

   One day before I go to [Country 1], I hit one of them, one of those two three people who are torturing me, I ran over by car over him. I hit another one with stick because they tortured me so much…I did that in the afternoon [before his flight]. One, I knew where he is living, and one I knew where he is working. For the one I knew where he is working, I stood at his workplace until he came out and I ran over him by car. For the one I knew where he is living I asked a friend to stay there and let me know when he is coming home and when he came, I rang the bell, and when he came out I hit him with the stick, I hit him very hard because he tortured me a lot.

   The applicant responded that maybe the interpreter didn’t interpret it properly.

7. Regarding the interpretation I do not accept that the entirety of the above narration could have been incorrectly interpreted such that the interpreter made up the story. While words or inferences can be misinterpreted the applicant’s narration of the encounter is comprehensive. I find it difficult to understand how the applicant could initially forget that he had attacked a Sepah officer and then subsequently be confused over whether he had run over a security official in a car. These are not inconsequential events. They are not events that the passage of time may erase even when prompted by the Tribunal and specifically being asked the question. It is particularly of concern that at both hearings held by this Tribunal the applicant was adamant that at no time did he run anyone over with his car and yet at the earlier Tribunal hearing in 2015 he explained how he had run over someone. These inconsistencies lead to severe doubt over the applicant’s credibility.

8. In the protection visa application form, the applicant, assisted by a migration agent, completed a list of all of the places where he had resided. I put to him that his list of addresses includes where he was for two hours ([Country 2] Airport), six hours (Imam Khomeini Airport), 10 days ([Location] Shopping Centre) and another 10 day stint (unknown villa, [Country 1]) and yet at the hearing (as well as the prior, differently constituted Tribunal hearing) he claimed that he had spent time in the north of Iran. At our hearing he stated his time spent in the north of Iran was for a period of two or three months while at the differently constituted hearing he stated it was for four months. This is relevant and of concern because there is no mention in his statutory declaration that he had fled in fear from his hometown nor his PV application where a list of where he had lived included such short periods as a few hours. When this was put to him the applicant responded that he was never asked about those details. He said that he always answered the questions he was asked. I find it vexing that the applicant would include the level of detail down to the hour and yet omit that he had spent months in another part of Iran.

9. The applicant said that there was someone in the Sepah who used to harass his family. He said that his father, who was a businessman buying second hand [products] and selling [them], gave that man money to stop harassing them. The applicant said that the Sepah officer knew that his father was willing to spend money, so he continued to harass them. He said that the Sepah officer wanted to rip them off and so asked for money every now and then. The applicant claimed that this began after his participation in protests which would have been in 2005. The applicant claims that his father has passed away and since his passing the applicant’s siblings sold their father’s business and bought their own smaller businesses in other cities.

10. The applicant claimed that his mother has had to keep moving houses because the same Sepah officer continued to harass her after the passing of the father. He said that she had moved two or three times up to last year because she was getting harassed. He said that it was because they have photos of him protesting in front of the Iranian embassy in Australia as well as some videos. He claimed that they were asking about him as well as looking for money to extort. I put to him that he has three brothers and asked if they are also being harassed. He said that they all live separately with their own lives living a distance from the city. I asked why then, doesn’t his mother move to live with her sons instead of moving elsewhere. He said that she doesn’t want to cause any issues for her sons. He claimed that the Sepah officer who he said he had hit on the nose and had being asking for bribes has now been promoted to a higher rank. He said that it has been a year and a half or two years since the man from the Sepah who had harassed them before had come to visit his mother. I find it problematic that the applicant’s mother is claimed to be harassed by rogue officials to such a degree that she would feel compelled to move houses but would not go to one of her sons’ homes because of fear of bringing danger to them, despite there being no suggestion that her sons were in hiding, rather they were running their own businesses. I also note that there is no suggestion that the applicant’s brothers were approached to seek information about him or were being extorted. For these reasons I question the claims of there being a Sepah officer whose nose he broke and who has been harassing his family since the passing of his father and the dismemberment of the family business.

11. In conclusion, regarding the applicant’s credibility, the applicant has been involved in the protection application process for approximately eight and a half years including a Departmental interview, a previous but differently constituted Tribunal and the current process. He has been supported through these stages by an agent. Approximately a year after departing Iran the applicant provided to the Department a detailed statutory declaration explaining his circumstances. Eight months later in August 2013 he was interviewed by the delegate. Problematically, when the applicant was interviewed at the differently constituted earlier Tribunal hearing in 2015 and subsequently in this iteration in 2020/21 the claims change. In some instances, the claims represent a greater degree of persecution than was originally represented while in other instances less. In other words, his claims are inconsistent. Were the inconsistencies minor discrepancies of date or obvious confusion over which year an event occurred I would overlook them acknowledging that memories can be forgotten and that trauma, whatever its source, can have an impact on them. But in this case the evidence differs in substantive ways that lead into question the applicant’s credibility. To claim, for example, on the one hand that he was not present at a major protest but then at another time claim that not only was he present but he was arrested, detained and beaten is difficult to sustain. As a result of the repeated and extensive number of inconsistencies between his earlier statements and current claims, which lack adequate explanations, I find the applicant’s credibility to be completely undermined. Because of the extent of inconsistencies, I do not accept any of the applicant’s claims of being arrested, detained, charged or tortured.

12. I find that the applicant attended some protests, as country information indicates that over the period the applicant lived in Iran there were large scale protests that many young people attended, but I find that at no stage was he of interest to Iranian authorities for his protest activity and that as a result he does not have a profile as a protestor. I do not accept that the applicant ran over or beat up Sepah officials including breaking the nose of one official, running over another or in any way harming any official.  I do not accept that the applicant was blacklisted from departing Iran, nor that he paid off a fixer who facilitated his departure from Iran. I do not accept that the applicant has a file including a pending case against him. I do not accept that the applicant’s mother has been moving to a new house because of his participation in protests in Australia nor that she has been harassed or extorted by a Sepah official.  

13. From the applicant’s time in Iran, I accept that the applicant presents himself as Ahwazi Arab and as such would be considered Ahwazi Arab. I accept that the family, when they lived together and the father’s business was consolidated, were moderately well off and were extorted by government officials.

14. The applicant has also claimed that he has participated in protests while in Australia. He said that he has protested in both Melbourne and Canberra. He said that the last time was a year and a half or two years ago in Canberra in front of the Iranian Embassy. I accept that the applicant attended some protests while in Australia.

15. The applicant also provided pictures to the earlier, differently constituted, Tribunal, of himself dressed in Arab clothes while in Australia. I accept that the applicant has on occasions worn Arab clothes in Australia.

16. The applicant has claimed that he has faced discrimination based upon his ethnicity. In his statutory declaration from 2012 he explained that he believes he was fired from a job at [Workplace 1] because of his ethnicity. When this was raised at the hearing the applicant stated that he does not have issues with finding employment in Iran. I accept that the applicant can find employment in Iran.

17. At the previously constituted Tribunal he detailed his claims of discrimination including difficulties in accessing a national ID card and driver’s licence. He claimed that he had to bribe someone to facilitate them and that he faced extended delays. Regarding the delays, he said that he failed the test for the first time, but when he asked for a second test there were lengthy delays and he found that his other Arab friends were also facing delays. He claimed that he had to pay more money than other Iranians would have had to pay to obtain documents. He said that at the time of his employment with [Workplace 1] which was in 2009 he had to provide to the company his driver’s licence and national ID. I have found that there are considerable doubts about the applicant’s credibility and as such question whether he had to pay to obtain his documents or whether there were discriminatory delays in receiving them. But noting that his claims over discrimination against Arabs such as in his employment at [Workplace 1] or accessing documents have been a consistent theme I accept that there were some discriminatory actions taken by the authorities against the applicant based upon his Arab ethnicity.

    CONSIDERATIONS

18. In summary, the applicant is an Arab Iranian from Ahwaz in Khuzestan Province. He has participated in some protests in Iran but without there being an official record of his participation. He has experienced some discrimination in the past. The applicant has participated in some protests while in Australia. He is the son of a family that has in the past been extorted by security officials and he is an asylum applicant.

    Past protests in Iran

19. I accepted that the applicant, at some stage during his youth, participated in protests. I found that he was not identified by authorities and that he does not have a profile with the authorities.

20. As the applicant was not identified at the time of the protests which are now some ten to fifteen years in the past and was not detained by the authorities subsequent to any protests at the time and that he left Iran on a passport in his own name I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of having participated in some protests while in Iran.

    Protesting in Australia

21. I put to the applicant country information from DFAT:

    International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes…protesting outside an Iranian diplomatic mission.[1]

    [1] DFAT, ‘Iran Country Report’, 14 April 2020 [5.30]

22. The applicant responded that what DFAT claims to be the case is not the same as what they hear from people going back. He confirmed that if you don’t have any background then they let you go, but those who have been arrested have some sort of background or a file including if they had attended protests in Australia and were identified.

23. I put to him that DFAT concludes:

    DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[2]

    The applicant did not have anything to say in addition to what he had provided in response to the earlier piece of country information.

    [2] DFAT, ‘Iran Country Report’, 14 April 2020 [5.31]

24. Noting country information which specifically states that the Iranian authorities have little interest in returnees who have been protesting outside Iranian diplomatic missions and having found earlier that the applicant does not have a background of interest to the authorities I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal for the reason of having protested against the Iranian regime while in Australia.

    Consequences of being Ahwazi Arab

25. The applicant has claimed that he faces discriminatory treatment by the state for being Ahwazi Arab which is the term for Arab Iranians from Ahwaz. In the below section I have considered his claims as both being an Iranian Arab from Ahwaz as well as an Iranian Arab more broadly.

26. I read to him country information from DFAT:

    Arab cultural activities are tolerated, and Arabs can freely wear traditional Arabic dress. They also freely speak the Arabic language. DFAT heard anecdotally that Arabs in Khuzestan Province are afforded considerable space to express their ethnic identity.[3]

    In response he said that its all lies. He suggested searching on the internet for Khuzestan alone would disprove such a statement. The applicant said that the problem wasn’t about their dress and instead focused on the smoke and dirt from factories in Khuzestan. He said that Khuzestan is one of the richest cities in the world but if there is rain for half an hour or an hour people have to travel around by boat.

    [3] DFAT, ‘Iran Country Report’, 14 April 2020 [3.8]

27. I said that DFAT agrees with him on that point and read to him again from their report.

    that Arab-populated parts of the country have traditionally been the subject of economic neglect.

28. With regard to the applicant’s claims of discrimination in accessing documents such as a national ID or driver’s licence I read to the applicant the below extract from DFAT:

    DFAT assesses that Arabs are not specifically targeted for discrimination on the basis of their ethnicity, including in their ability to access government services, and are afforded the same state protections as other ethnic minorities.[4]

    [4] DFAT, ‘Iran Country Report’, 14 April 2020, [3.13]

1. The applicant responded by explaining that there has always been discrimination against Arabs until you speak Farsi fluently and it’s no longer evident that you are an Arab. He said that it was enough to have an Arab accent. He said that if the government had spent a quarter of the wealth of the city on the city then it would be different as the town is always dirty and filthy.

2. I note that the applicant had faced significant delays in accessing identity documents but that by 2009 when he worked at [Workplace 1] he had them. As the test for asylum is a forward-looking test past events may inform the future such as delays in accessing documents, but nevertheless, I give greater weight to contemporary reporting by DFAT on the situation of Arabs over his experiences in the early 2000s. Considering that DFAT notes that there is no discrimination on the basis of ethnicity to access government services I do not accept that the applicant will face discriminatory harm in his future attempts to update or obtain new government documents.

3. I accept that there is economic neglect as described by the applicant and reinforced by DFAT. The applicant did not provide evidence nor is there evidence available to suggest that the city’s lagging economic development and the presence of excessive smoke or a lack of adequate storm drainage would amount to serious or significant harm.[5] The applicant’s claims of cultural discrimination are not supported by country information. Regarding employment discrimination, while the applicant described his experience with the sugar refinery, he admitted in the hearing that he does not face a problem with employment other than being unable to find work in an office. I do not accept that such discrimination in office jobs, even if it were to exist, would amount to serious or significant harm. Overall, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for the reasons of his Arab ethnicity either as an Iranian Arab or specifically as an Ahwazi Arab whether due to cultural, employment or regional development reasons.

   Extortion

   [5] I reviewed DFAT reporting including questions and answers compiled by the RRT and the Department on Ahwaz as well as reviewed news reporting and searches through Google and CISNET.

4. The applicant has described situations in the past of his father being extorted for money by Sepah officers. At that time his father was a successful businessman who had a business including a warehouse and [store] selling used [products]. Country information suggests that extortion is present in Iran and as such the Tribunal accepts that it occurred. But since the applicant’s departure the business that was so attractive to the officials has been sold and the funds were used by the applicant’s brothers to buy their own businesses. The applicant would be returning to Iran not as a successful businessman, as his father was, nor even as a businessman, as his brothers are (and there being no claim that they are being extorted) and as such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from extortion by government security forces.

   Having sought asylum

5. In CLS15 v Federal Circuit Court of Australia [2017] FCA 577 Charlesworth J wrote at [64] that, ‘It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists.’

6. The applicant claims that he would refuse to return to Iran on a voluntary basis.

7. The Iranian Foreign Minister, during his March 2016 visit to Australia, stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[6] On 19 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia. Based upon the long history of the Iranian government not accepting involuntary returnees and that only in recent times a diplomatic breakthrough has led to a change of position, I find that into the reasonably foreseeable future the Iranian government will not again give ground and revisit its agreement not to accept involuntary returnees prior to the date of the MOU. As such when turning my mind to considering the applicant’s risks I do so upon the basis that was he to return to Iran in the reasonably foreseeable future he would do so as a voluntary returnee. The alternative for the applicant is that he remains in Australia, which may involve community detention or detention in an immigration detention facility, neither of which falls within the purview of the Tribunal’s review under the Act.

   [6] <>

   I read to the applicant the following information from the DFAT country report relating to voluntary returnees:

   Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history…Arrest and mistreatment are not common during this process…DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.[7]

   [7] DFAT, ‘Iran Country Report’, 14 April 2020, [5.29]

8. The applicant said that this was not the case but did not elaborate further on the DFAT report.

9. I note country information that was referenced above in this decision regarding the risks of protesting in Australia which is equally relevant when considering the risk a voluntary returnee faces:

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

10. As noted above, the applicant did not have a response to this claim other than dismissing DFAT’s assessments based upon what he has heard from others.

11. I also note that despite the applicant having protested in Australia, DFAT country information referenced above suggests that ‘Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including…protesting outside an Iranian diplomatic mission.’

12. I have found that the applicant is not a person of interest to the authorities in Iran and his activities were known to the authorities in Iran. While it is possible that the authorities have since learned of the applicant’s views through his participation in a few protests while in Australia I note that country information states that Iranian authorities are unlikely to pay attention to returnees, including those who protest against the Iranian government while in Australia, unless known for their prior activities. In considering the report as a whole and specifically the information referenced in this decision, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

13. I have also considered the claims cumulatively, namely that the applicant has participated in some protests in Iran in the past but is not known to the authorities for those actions, is an Arab Iranian from Ahwaz, has a family who in the past was extorted by Sepah officials, has participated in protests in Australia, and has sought asylum. When considering these claims cumulatively and how they intersect and potentially amplify the applicant’s risks I find that the applicant does not at any stage whether upon arrival, or subsequently living in the community, face a real chance of serious harm or a real risk of significant harm. 

14. 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).

15. 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).

16. 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

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

    Denis Dragovic
    Senior Member