1723047 (Refugee)

1723047 (Refugee) [2018] AATA 380 (15 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723047
COUNTRY OF REFERENCE:                  Iran
MEMBER:Rodger Shanahan
DATE:15 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 15 February 2018 at 2:14pm

CATCHWORDS
Refugee – Protection visa – Iran – Political – Participated in 2009 demonstrations – Anti-government – Wanted by authorities - Asylum in Australia – No religion – Not reliable, credible or truthful witness – Fabricated claims for protection visa – No political profile
LEGISLATION
Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 416, 424AA, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Iran, applied for the visas [in] April 2017.
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed that he participated in the post-June 2009 election demonstrations against the Iranian regime; he was opposed to the regime but does not have the freedom to express this openly He is a moderate Shi’a Muslim who doesn’t attend the mosque.
He attended the first protest on 13 June 2009, the day after the election. He went there with his friend [Mr A] who was riding pillion. During the demonstration he was attacked by a uniformed police officer who hit [him]. A photo was presented in support of this claim.
Following the attack he destroyed the motorbike and all the ownership papers as he knew the police would trace him through the numberplate. Shortly after, the police came to his house and a summons addressed to him was given to his father requiring the applicant to attend a police station in Tehran. It advised that he would be prosecuted if he didn’t attend.
He went into hiding and was constantly on the move with his wife. During the next 12 months they lived very quietly in Tehran, rarely leaving the house. He also changed his work and did [a certain job] so he could work from home. The police came to his father’s house many times asking his father if he knew where the applicant was; the police threatened his father and said they would arrest him unless the applicant reported to the police.
His father was taken to the police station twice where he was abused and threatened. The applicant was fearful of being caught and obtained the name of a smuggler from a friend. The smuggler had a contact at Tehran airport who facilitated their departure. The police still go to his father’s house asking for the applicant.
He feared that he would be arrested, interrogated, tortured or killed because he had participated in the 2009 demonstrations and would be perceived as being anti-government because he had sought asylum in Australia.
AAT Hearing
The applicant’s wife was asked if she was going to give evidence at the hearing and she said she was willing to answer any questions she was asked. It was decided to swear her in at the same time as her husband. The applicant was told about s 416 of the Migration Act and that if a non-citizen had made an application for review where thhorne earlier application had been reviewed by a review body and that a new application to a review body was made the Tribunal was not obliged to consider any information included in the earlier application and may have regard to and take to be correct any decision the review body had previously made.
This meant that the applicant [Child 1] had a decision reviewed in January 2013 and August 2014 and they both found that he was not owed protection obligations by Australia. He had made another claim as part of the applicant’s claim. It was proposed that the claim had been looked at twice already and this was based on the first-named applicant’s own claims as [Child 1] had none of his own. It was proposed that as a result of this section of the Act that only things that had occurred after the refusal of January 2013. He claimed that he understood this and said that he agreed with the Tribunal’s proposal.
Asked if he had any relatives in Australia, he claimed that his [siblings] [and relatives] were here. [One sibling] was here on a permanent visa and had arrived by boat and was granted protection. His [other sibling] was on a bridging visa and had also arrived by boat but had not yet been granted protection. His [relatives] had permanent visas.
The second-named applicant was asked whether she had her own claims or whether she relied on the first-named applicant’s. The first-named applicant stated that he was the applicant, and the Tribunal advised the second-named applicant that if she wished to say something she just needed to indicate and she would be allowed. This was designed as a control mechanism as she had begun to interject.
He was again asked about whether he understood s 416 and what the practical outcome was (no events prior to January 2013 to be taken into account by the Tribunal). He then said that many mistakes by the authorities had been made about his application previously and he did not accept this section and wanted to explain his entire claim. He then said he had been in Australia for seven years and his [sibling] had had a visa for five years. He was told that claims are all treated individually and the fact that his [sibling] had a visa had no impact on his claim.
He claimed that if he returned to Iran he would be targeted because of his lack of religion and because he did not recognise the Iranian government. He would be interrogated, imprisoned and tortured and forced to follow the religion. He also believed that he was opposed to the Iranian government and as a result he would be imprisoned, tortured or killed until he accepted what they said. His wife remained Muslim and he had issues with her about this. He had no other claims.
The applicant claimed that if a person did not believe in the government’s religion or the government itself they could not live there. Asked if he had any country information to support this claim, he said he had observed much information about this via media and [social media]. Asked if he could provide documents to the Tribunal in support of this claim, he claimed that he didn’t have any documents but his friend who was participating with him in the protests was taken to prison and he hadn’t heard from him since. Asked how this related to the practice of religion, he claimed that it didn’t.
Regarding his lack of religion, he claimed that he came to this view once he came into Australia. He was asked if he returned and didn’t attend mosque or commemorations, how people would know, he claimed that he didn’t participate even when he was in Iran. But if he wanted to work for an organisation and he had to fill in an application form and had to note his religion he would not be able to admit to having one. There were also many informers in Iran and this would be found out.
It was put to him that Iran had one of the lowest rates of attendance at mosque according to country information and that it was highly unlikely that Iranian authorities monitored people’s attendance at religious observances. He was asked if he had any country information to support his claim and he said that what the Iranians announced to the world about what was happening was wrong. People without religion in Iran were against the government because the government was religious. He was asked how the government knew people’s attitude to religion, and he claimed there were many informers in Iran. The Baha’is were one example. It was put to him that Baha’is believed that Ali had returned so was a threat to Shi’ism and hence a different case than his alleged lack of religion.
He claimed that in Iran if someone did not believe in any religion they were considered an apostate and were worse than a Baha’i. he was asked to provide some country information to support such a claim. He claimed that he didn’t have such evidence and the problem that he had with his application was that Australian authorities had wrong information and didn’t know what was really happening in Iran. He was advised that the Tribunal could only deal with the available country information.
Asked if he had previously told decision-makers that he had not attended religious services in Iran. He couldn’t remember when he had told people but was sure that he had as he was asked. He was asked when he decided that he had no religion and he said this was for many years but he hadn’t made it public except for the last two or three years and had told everyone.
It was put to him that in his statement [in] March 2017 he had said he had a belief in a moderate form of Islam. This was inconsistent with what he had just said about his belief in no god. He claimed ot may have been written by mistake or misinterpreted. It was put to him that the statement said it had been read back to him by an interpreter and he agreed with it. he claimed he had said he did not accept religion and had never said what was on the statement. He was advised that he would need to provide a statutory declaration from whoever took the statement supporting his claim. He then said that he had believed in moderate Islam before. It was put to him that he had just said he had not believed in god for a long time and the statement was taken nine month ago. He said he had noticed that there were many errors in his file.
Asked about his opposition to the Iranian government, he claimed that if he returned to Iran he would have to tell a lie but wouldn’t be able to. He was asked why they would think he was opposed to the government and imprison him and he claimed that if he was deported he would be asked why he had left Australia. It was put to him that there was no bilateral agreement that would allow his deportation so he would voluntarily return to Iran. He claimed that he would still be asked questions. At this stage his wife felt ill (she was pregnant) and she left the room to go to the support people who were outside.
He claimed that he had entered another country as an asylum seeker. It was put to him that the authorities realised people left for economic reasons and was asked why the authorities would be worried about him. He claimed that they didn’t leave for economic reasons and he didn’t like the government and didn’t recognise the organs of Iranian authority which is why he left the country covertly to seek asylum. He had to leave covertly as he was being targeted by the authorities and someone arranged his passport so he could leave.
This was because he had taken part in the 2009 protests and was beaten and the authorities were after him. He was asked why, of the hundreds of thousands of people in the demonstrations that were there they were after him, he claimed it was because they recognised the numberplate on his bike or through his friend telling the authorities about him. He had been on a motorbike and was recognised. He was not a leader and was asked why he would be of interest to authorities. He repeated as to how he could have been recognised and were interested in him because through him they could find leaders. It was put to him that the Iranian intelligence services were quite good and could recognise the leaders. He claimed they didn’t know and used mass arrests to prevent a repeat.
After the June 2009 protests, he destroyed his motorbike but the authorities found his address and he lived in hiding until the day he could leave Iran. He left Iran in 2010, about a year and a half after the protests. He hid for 18 months at his [sibling]’s house and a family house in [a town] that was not in their family’s name. He was there or at his [sibling]’s or friend’s house. To survive he worked in the [occupation] and coordinated with his boss via telephone – he remained working but doing it by [phone]. He would speak to his boss daily or every two or three days. It was the same boss he had before the protests. He claimed they had two different phones that his boss provided to the applicant and used himself. Asked if he had mentioned this before he claimed he didn’t know what had been asked of him.
It was put to him that Etilaat may have constructed a network diagram and noticed that the applicant’s old phone had gone silent but the boss was still having [work done]. It may be possible for them to analyse the boss’s phone networks and realise that there may be another (unknown) device being used. The applicant repeated his claim about the purchase of two new phones to maintain communications with the applicant. It was again put to him that Etilaat would work out that some business may have been done that they couldn’t account for and may start to geolocate where incoming phone calls were being made from. He claimed that the second phone was not in his name and it was put to him that to geolocate phones one didn’t need to know the registered name.
Asked why he was working at all for these 18 months with Sepah looking for him. He claimed that he needed money to survive but his boss was very nice to him. He was asked why he didn’t just go to Turkey or Armenia. He claimed one needed to find someone to get him out that he could trust. Asked why he didn’t just walk over the border outside the border crossings and report to the closest UNHCR office to claim asylum. He claimed that he now knew how to use a computer but then he didn’t know how to use a computer or the internet.
He originally thought that his problem would be solved and his friend would be freed. He didn’t think it would be such a big issue and he would be wanted by the authorities. He realised it would be a big problem when his friend couldn’t get out of prison. This was after a few months when he hadn’t heard from his friend and he became more worried – he then received court and police letters at his father’s house and they were looking for him. The first of these were shortly after the incident.
The letter was about going to court or the police but he didn’t know which one. His father is illiterate and someone read it for him. He told his father to destroy the letter. Another letter arrived and people came to speak to his father. There were three or four letters and the police came and at one stage took his father to the police station. His siblings were at home and read and knew the contents of the letter. It was put to him that they would have told him who wanted him to report to. He said he thought it was the police station.
After the protests he doesn’t know what happened to [Mr A]. He was arrested as he saw the police catch him. He spoke to [Mr A]’s friends and they couldn’t find any news about him. The applicant left Iran through Imam Khomeini International Airport (IKIA). It was put to him that this was the hardest exit point in Iran when he could have walked over the Turkish border and claimed asylum. He had heard many people had done this, and many had been arrested but it was very risky.
He had to return to Iran from [Country 1] because his wife was very sick. It was put to him that he had claimed to hide for 18 months in Iran because he claimed he was scared of the authorities, didn’t go to Turkey by foot. He then flew out of IKIA, then returned to Iran via IKIA then left again by the same route. This raised questions as to whether he was of any interest to authorities. He claimed the people smuggler arranged things for him who made it safer for him. He and many others did the same and he had stated this on oath.
Asked if the authorities were still after him in Iran, he claimed they never stopped looking for people. His father had been taken by the authorities a few times and his [sibling] had been fired from [sibling’s] employment with the government – he didn’t know what job [sibling] did in government. [Sibling] never told the family or anyone else. He was asked whether [sibling] had ever told anyone [sibling] was doing a particular job or it was assumed that [sibling] was. The applicant said no.
He did not participate in any demonstrations after the one he described and did not like the Iranian government. News media bout what occurred in Iran was not the truth and the real truth was never revealed.

He was asked about fearing serious harm relating to a data breach that occurred in Australia. His claim relating to a data breach in which his name appeared on a website was noted and this was the reason he was allowed to submit another claim. He was asked what his claim was relating to the data breach and he said if the Iranian government came to know about his name appearing on the list he would be imprisoned and perhaps torture. Country information was put to him that failed asylum seekers returning to Iran weren’t of interest to the authorities unless they had a pre-existing profile. The Iranian foreign minister was well aware of failed asylum seekers in Australia and had said publicly that they are free to return to Iran. IOM has an office in Iran and they also indicate that Iranian authorities aren’t interested in people without pre-existing profiles. He claimed this was correct but it didn’t apply to everybody, so that people with religious or political issues will be imprisoned and tortured.
His [marking] on his [limb] was pointed out and he said he was not making a claim regarding this as he didn’t think it was a problem.
He was advised about s 424AA and it was put to him that when he spoke to DIBP he said he had only made one trip to [Country 1] and, when asked whether he had ever been to [Country 1] prior to this he denied it. When information was put to him that he may have travelled to [Country 1] and returned to Iran before he again travelled to [Country 1] he agreed this was the case. This may give rise to the Tribunal forming an adverse opinion regarding the applicant’s credibility. He claimed he hadn’t understood the question at the time. It was put to him that the member had listed to the interview and it was very clear – the delegate had also given a very specific follow-up question that couldn’t really have been misinterpreted and no alternative translation had been provided in the subsequent six years.
He claimed that he had never known about the rules when they came to Australia and had only listened to others. He claimed he hadn’t understood the question clearly and had been told when they were coming to Australia he was told to deny having gone to any other country before Australia. It was put to him that he knew he wasn’t telling the truth. He claimed then that he didn’t really understand the question at first and then didn’t know how he should answer given what they had been told to say.
Also under s 424AA during the previous interview he had said of [Mr A] that one of the police put his [certain item] in the wheels of the applicant’s motorbike then they started beating the applicant up. It was crowded but he and [Mr A] escaped. Today he had said that he saw [Mr A] being arrested at the protest. This was inconsistent with his claim that they had both escaped. This raised issues with his credibility. He claimed there was a mistake in conversation – he had said truthfully he saw [Mr A] being arrested but in the crowd nobody can actually see anything. He ran away and when he asked and nobody saw him then he must have been arrested. He definitely saw [Mr A] being arrested.
Also during an earlier interview he had claimed his [sibling] was a part of Etilaat who told him of his date of blacklisting and where he would and wouldn’t be located. Today he had said that he didn’t know what his [sibling] did but [sibling] was part of government but nobody knew what [sibling] was doing. [Sibling] said [sibling] was told to make things brief and that people in Etilaat weren’t allowed to tell people what they did. It was put to him that this was different to what he had previously said, which was that his [sibling] gave him some assistance in terms of information he had given. [Name] arranged the applicant’s travel but was introduced to the applicant by his [sibling]. He claimed that it had been a long time and he had been in Australia for seven years and had [number of] children. He lived with the uncertainty in Australia because of what he faced in Iran.
The second-named applicant was brought in and she said she didn’t have anything to say other than they had been here for eight years and would not have stayed if there was any possibility to return. They had children since she was here and had been afflicted with many health issues. Asked if there was a letter referring to these health issues, she said there was and was under treatment for stress and had a [medical condition]. The letter noting her stress related to her uncertain migration status was noted and she said this was correct. She had nothing else to say other than she was concerned for her children.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first-named applicant is [an age] married Iranian from Tehran who arrived at [a location] by boat with his wife (the second-named applicant) [in] January 2011. They have, since arriving in Australia had [number] children and are expecting. The applicants relied on the fist-named applicants claim and did not have claims of their own.
The applicant’s claim for protection was denied [in] July 2011 and affirmed on 30 June 2012 by the Independent Protection Assessment Office (IPAO). One of their children [Child 2] (not included on this application because he was deemed ineligible) made an application for protection [number] days after he was born, which was refused [in] March 2012 and affirmed by the RRT on 31 March 2013. This decision was appealed to the Federal Magistrate’s Court and the RRT decision was set aside [in] October 2013. The RRT again affirmed the decision with respect to [Child 2] on 15 August 2014.
The applicants were identified as detainees affected by the unintentional release of personal information by the Department in February 2014 and [in] April 2016 the Minister exercised his power to allow the applicants so effected (with the exception of [Child 2]) to lodge an application for a Temporary Protection Visa. They lodged an application [in] April 2017 and were deemed not to be people for whom Australia had protection obligations [in] September 2017.
The applicant fears returning to Iran because he claims he would be imprisoned, tortured and killed for having no religion and being opposed to the Iranian government.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation and often before an applicant fully appreciates what is relevant and the degree of detail required. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Attendance at protests
I do not accept that the applicant attended any of the protests following the 2009 election, that his friend [Mr A] was arrested, that the applicant was wanted by the police/security authorities or that summonses had been sent to his father’s house, or that his father was taken to the police station, abused and threatened. This relies on the applicant’s oral testimony which I have found lacks credibility. There are also a range of other issues relating to the alleged interest in him shown by the authorities. I have taken into account the photo that he claims shows him on a motorbike being hit by a [policeman] (folio 67) however the angle too great and the quality too indistinct to say that it is the applicant.
Despite claiming that the authorities were after him and he managed to avoid them by moving house constantly, he never sought to leave the country for over a year and continued to work for his old boss. I have noted that the applicant claimed that he worked because he needed the money, yet it is not clear why he needed the money in the first place as it is reasonable to believe that the applicant would have sought to leave as soon as possible after he knew the authorities were looking for him.
There is an active smuggling network[1] along Iran’s 500 km border with Turkey and he could have availed himself of this at a fraction of the cost of flying to [a region] and then taking a boat to Australia. I do not accept that he didn’t take this option because he needed to find someone to trust, didn’t know how to use the internet or thought that his friend would be freed given they all rely on his credibility which I have found to be lacking.
[1] accessed 7 February 2018
I also do not accept that the applicant avoided detection because they (he and his boss) used two new phones provided by the boss to avoid detection. Country information however, indicates that Iran has a sophisticated telephone surveillance system[2] and that in general, simply using different phones is not a guarantee of avoiding detection.[3]
[2] accessed 15 February 2018
[3] accessed 15 February 2018
More importantly was his actions after departing through IKIA. Having left Iran and landed in [Country 1] he then returned to Iran voluntarily through IKIA and departed once again through the same exit point, this time with his wife. Regardless of the reason for returning to Iran, what is most important is that at no stage was he stopped by the Iranian authorities either arriving or departing, which is hardly indicative of someone wanted by the authorities. Furthermore, he sought to cover up these movements by first denying them to DIBP when asked.
It was only when information about his movements was put to him by DIBP and it was apparent that his true movements were known to Australian authorities that he answered truthfully. I do not accept that he misunderstood the question or that it was mistranslated as it was a straightforward question and he has never offered an alternative translation. Nor do I accept that he was saying what people had told him to say. He understood the need to tell the truth and made a conscious decision not to do so, understanding that it would call into question the veracity of his claim.
Because I do not accept that the applicant is wanted by authorities it follows that his father has never received any letters or summonses for him or been taken by the authorities or mistreated by them in any way. I also do not accept that the applicant’s [sibling] is in the Etilaat and was able to help the applicant depart but has now been sacked by the Iranian government. If [sibling] was willing to help the applicant it appears implausible that [sibling] wouldn’t have been able to provide such help to leave the country (perhaps by the land option via Turkey) at a much earlier date. The claim also relies on the applicant’s oral evidence alone, which I have found lacks credibility.
Lack of religious belief
I do not accept that the applicant has no religion and would be considered as an apostate. Although he claimed that he had no religion and that he came to this view once he came to Australia, his statement dated [in] March 2017 reflects the same claim that he made in May 2011. That is, that he would be harmed because of his religious belief in a moderate form of Islam. I do not accept that this was written by mistake or misinterpreted, or that he had never said these words as the statement contained the words ‘This statement has been read back to me with the assistance of an interpreter and I agree with its contents.‘ He was given the opportunity to provide a statutory declaration from whoever took the statement to strengthen his claim that it didn’t reflect what he said, but no such document was forthcoming following the hearing.
Because I do not accept that the applicant lacks religious belief I am not satisfied that he would be considered an apostate by the Iranian authorities. It follows that he would not have to indicate that he didn’t believe in any religion when filling out job applications. While I am willing to accept that the applicant does not attend mosque in Iran, I am satisfied that there is not a real chance that the applicant will suffer serious harm as a result. Country information indicates that the Iranian authorities do not normally interfere in the private religious lives of their citizens[4], and that low levels of mosque attendance have also been indicated amongst the general Iranian population.[5]
Other Issues
[4] Landinfo 2011, Iran: Christians and Converts, 7 July p 15
[5] Tezcur, G et al 2006, ‘Religious Participation Among Muslims: Iranian Exceptionalism’, Critique: Critical Middle Eastern Studies, vol 15, no 3, p 222
The applicant had a visible [mark] on his [limb]. He made no claim regarding it and said that he was not making a claim with respect to it because he didn’t think it was a problem. This accords with country information on the issue of [markings].[6]
[6] DFAT Country Report – Iran, [date].
I do not accept that there is a real chance that the second-named applicant will suffer serious harm on the basis of her psychological issues if she returns to Iran. I accept that she is being currently treated for major depression with anxiety (folio 6). However I also note that in the same letter the psychologist states that her conditions are closely linked to her uncertain visa status.
I acknowledge that the applicants have been in Australia for an extended period of time however I also note that their claims have been refused on numerous occasions, and every new application has extended their time in Australia. It is reasonable to believe that, if her symptoms are linked to her uncertain visa status then once that status has been resolved her symptoms should be alleviated. Regardless, if she requires ongoing support I am satisfied that this exists at an appropriate level in Iran. There is a National Mental Health Program and differing levels of mental health care (including at the integrated primary level) are accessible.[7]
[7] accessed 12 February 2018
I do not accept that the applicants will be harmed on return to Iran simply for being failed asylum seeker, or that they would be perceived as anti-government because they sought asylum in Australia. Country information indicates that a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.’[8] This was supported by other sources; a February 2011 UK Upper Tribunal decision also found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment.
[8] DFAT Country Report – Iran, 21 April 2016.
Given I have found that the applicants have no political or criminal profile, they would be of no interest to the authorities on return as anyone other than people returning on a different travel document than the one they left Iran on. Country information indicates that the Iranian officials provide assistance to those who wish to voluntarily return to Iran.[9]
[9] Ibid
I do not accept that they would be involuntarily returned to Iran as the Iranian foreign minister during a visit to Australia in March 2016 stated that, while voluntary returnees would be ‘welcomed with pride’, they would not accept anyone returned against their will.[10]
[10] accessed 12 February 2018
I note that the applicant’s names were revealed in a Departmental data breach as having been in immigration detention [in] January 2014 however I do not accept that the applicants will be imprisoned and tortured because of this. There is no country information to support such a claim and I have already noted that the Iranian authorities have little interest in failed asylum seekers returning to Iran. Therefore, in the event that such information did come to the attention of Iranian authorities, in the absence of any pre-existing profile they would simply be considered as failed asylum seekers on return to Iran.
Having had regard to all the evidence, and the applicants’ 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
Because I do not accept that the applicant lacks a religious belief, or is likely to come to the attention of authorities because of his non-attendance at mosque, or that the applicant ever took part in political protests, was beaten because he did so and had to hide from the authorities, that his [sibling] works in Etilaat, that the second-named applicant would be unable to access appropriate mental health facilities, or that they would be of interest to the Iranian authorities because of the data breach or because they were failed asylum seekers, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran, there is a real risk that the applicants will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 380

15 February 2018

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