1729148 (Refugee)

[2019] AATA 6918

1729148 (Refugee) [2019] AATA 6918 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1729148

COUNTRY OF REFERENCE:                   Iran

MEMBER:Michael Hawkins

DATE:25 November 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 25 November 2019 at 11:48am

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Circuit Court remittal – imputed political opinion – opposition to Islamic leader – religion – conversion to Christianity – returned asylum seekers – divorce forced by wife’s family – fear of arrest – fear of killing – employment – destroying evidence of identity – decision under review set aside and substituted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 45, 65, 91
Migration Regulations 1994, Schedule 2; r 2.08

CASES

MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZRSN v MIAC [2013] FCA 751

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Iran, applied for the visa on 25 June 2013 and the delegate refused to grant the visa on 23 January 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4. The applicant appeared before the Tribunal (differently constituted) (“the previous Tribunal”) on 16 March 2016 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Persian and English languages. On 29 March 2016, the previous Tribunal affirmed the decision not to grant the applicant a protection visa.

5. The applicant sought judicial review of that decision by the Federal Circuit Court. The Court ordered, by consent, [in] June 2016, that the original decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law. It was indicated that the original decision was affected by jurisdictional error in that the application for a Protection (Class XA) visa was, by the operation of s.45A of the Act and r.2.08F of the Regulations, to be treated as an application for a Temporary Protection (Class XD) visa.

6. The applicant appeared again before the Tribunal on 10 March 2017 to give evidence and present arguments. That Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. That Tribunal set aside the decision refusing to grant a protection (Class XA) visa and substituted a decision that the application for the Protection (Class XA) visa was not valid and could not be considered.

7. The Minister sought judicial review of that decision by the Federal Circuit Court. The Court ordered [in] November 2017 that that decision of the Tribunal be quashed and the matter be remitted to the Tribunal to re-determine according to law.

8. The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was not represented.

   RELEVANT LAW

9. 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

10. 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).

11. 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.

12. 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.

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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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

20. 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’).

21. ‘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.

22. 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.

    Section 499 Ministerial Direction

23. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the substantive decision under review should be affirmed. To give effect to the affirmation of the delegate’s decision, the Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

    Background:

25. The applicant’s background has been summarised by the previous Tribunal from his Protection Visa Application Form, a Statutory Declaration and a Statement. The applicant agreed that the summary by the previous Tribunal was a fair and accurate restatement of his background.

    My name is [name] and I am [an age] years old male born in Iran.  

    I am an Iranian citizen. My ethnicity is Persian and my religion is Muslim Shia. I am divorced and have no children. My father is deceased and mother and siblings currently live in Iran.

    I have lived in Iran all my life.

    I was married for [number] years and had a very happy marriage. However my wife's father is [an Islamic leader] and a Muslim Shia, He is high ranking Ayatollah which is much higher than a Mullah. His name is [Leader A]. He was always against my marriage because he knew that I had different opinions to him and I was very blunt when I spoke to him. I know that he would be a completely different person when at home, he would drink alcohol and he went with other women besides his wife and taking drugs.

    Claims:

26. The applicant’s claims have been summarised by the previous Tribunal from his Protection Visa Application Form, a Statutory Declaration and a Statement. The applicant agreed that the summary by the previous Tribunal was a fair and accurate restatement of his claims.

    Why I left my country

    I left Iran because [Leader A] made life impossible for me and I was worried that he would cause me hard (sic), or have someone else cause me harm. In about 2005 I had gone to the north of Iran for work. I was away for one month. When I returned my wife was gone, she had been taken by her father, they also taken our good furniture, I called family and friends who did not know where she was, then I called my wife's father. [Leader A] told me that he would not allow his daughter to return to me, that I should go there to get a divorce. He lived in [city name] which is about [distance] from Tehran where I lived. I have never spoken to my wife since that time. They have since changed homes and phone numbers.

    I went to the Court to lodge a complaint against [Leader A]. I was told to wait but in an hour the police came and arrested me and [Leader A] was with them at that time.  They were going to place me in detention but I ran away. I couId see that [Leader A] had planned everything. I was told to go with them and that they would explain later.  This was about 7 years ago.

    I went back to Tehran and to other places and hid in different places such as the homes of my [family members]. His sons came to Tehran looking for me, but I had moved out of my home. For those reasons I decided to leave Iran.

    What I fear might happen if I go back to my country

    I am sure that [Leader A] would cause me harm. He has strong connections within the the Government and Police and he can, and will I am sure, cause me problems. He has strong political beliefs he knows that I oppose his opinions.

    Who I think will harm or mistreat me if I go back

    [Leader A] and his connections in Government and police will persecute me and make it impossible for me to live anywhere in Iran.

    Why I believe they will harm or mistreat me if I go back

    I will be harmed because I am opposed to the opinions espoused by [Leader A] and the Mullah’s in general and this is known. My ex-fatherr in law had arranged for me to be arrested, I am certain that this will occur if I return and I will be imprisoned, harmed or even killed.

    Why I believe that the authorities in my country will not protect me if I go back

    [Leader A] is very powerful and has great influence over the Government

    
    

    including the police. They will not try to protect me.

    Why I believe I will suffer significant harm

    As a returning Persian who is a failed asylum seeker, I fear that I will be targeted and

    to suffer torture and degrading treatment. I will be targeted on my return, I would expect to be arrested at the airport because their records would show that I had departed Iran and now had a new passport. That would raise their suspicions.

    Why I cannot relocate

    There is no place in my country that I could live safely. [Leader A] and the other religious leaders had influence everywhere.

27. The applicant’s more recent statutory declaration provides as follows:

    I have provided information in the past in relation to my claims for protection, both written and orally. I have always talked about the truth, the whole truth and nothing but the truth and I believe my situation has not been understood by the previous decision maker because he has concluded that he has credibility concerns in regards to my claims for protection. I strongly believe that the decision maker did not even try to understand my claims because his questions were vague and many times the interpreter's questions were not understandable. I will endeavour to explain these Issues in this statement and hope to clarify them further during my hearing at the Administrative Appeals Tribunal.

    The first matter the previous decision maker raised was that he did not believe I was divorced. I have stated the events as they have happened. My ex-father in law who was a clergyman (can say Akhoond, Mullah or Ayatollah, no difference as far as I am concerned), used his power to get a divorce for his daughter/my ex-wife. Although I have not personally seen a divorce certificate or registration, I believe this is the truth because [Leader A] is my mother's relative [family connection deleted]) and that is what he has told my family has happened and what we believe is correct.

    I have never applied to get a divorce certificate for two reasons, one was that I was trying to keep a low profile and not "rock the boat" and trying to get a divorce certificate would have put me at risk in Iran. The second reason was that I simply did not need a divorce certificate or registration because Ii did not want to remarry so I never bothered to get one.

    The case office spent time discussing why my ex-father in law's name, again to me, this was the least important matter, we all called him [name], why would I want to lie about this? I still do not understand the significance of this.

    In regards to whether I went to court or the police to lodge a complaint, I have explained that I went to the police (Nirooye Entezami) and told them about my problem, they said I had to go to "dispute resolutions" of the family court which I did, I went directly to the court and that is exactly what I have said. I spent 15 minutes at the police station, Entezami, and they never registered any details, just sent me off to the court. To me that the police was not part of the process so I said I have gone straight to the court.

    Another concern was my escape from the way to prison; I am happy to explain it all again and the tribunal can make a finding if that makes sense or not. It is what has happened to me so I can explain again if I need to. The only difference was that I explained more details during my interview with the PV officer in relation to this matter because he asked me to. I now understand my statement of claims was very short and lacked details and that was not my fault. My then advisor told me to briefly explain why I have left Iran and I did so.

    Another matter the decision maker used as a discrepancy is about my arrival interview and statement of claims, again I see no discrepancies, just a different way of looking at the matter, no discrepancy at all and I can explain it orally if required.

    As far as addresses, during my previous interviews, I started telling different addresses I was staying and the interpreter said to only mention a permanent address not addresses I have stayed for short periods of time. So I gave the address of my parental home until I got married and the address I lived with my ex-wife and then my parental home after my divorce but I said I did not live there, I said I moved from one place to another. Same with my occupation, I never worked in one place after that, just moved from one place to another.

    It is true that I stayed in Iran for 7 years but I lived in constant fear. I had to keep a low profile to avoid getting into trouble. I am not claiming that the authorities were actively looking for me but I am claiming that I had to live a quiet life and out or ordinary and in constant fear and I no longer wanted to live like that. I was always afraid of being pulled over by the police so I did not drive a car for example or never expressed any concern about my rights to avoid getting into trouble. Life in Iran is oppressive anyway and if one has to live like how I did, it becomes unbearable. If I had the money to leave Iran any sooner, perhaps I would have done so, but I simply didn’t.

    The decision maker did not accept that my ex-father in law was a high profile cleric; but he accepted that I had a dispute with him and even a dispute is enough to bring a person down, in Iran money and power can do anything, things that my ex-father in law had and I didn't.

    Since coming to Australia I have worked in a [business] on full time permanent basis. After two years it was determined that I had serious injurious to my [body] disabling me to gain any sort of employment which puts pressure on my [body] for the rest of my life, This means anything which involves sitting, standing or walking for more than a few minutes at a time. I know that I will have to take double dose of my medication for my hearing for example to enable me to sit for longer than a few minutes. I will require surgery to my [body part] at some point to try and manage the problem to an extent but I will never be the same.

    I currently take 5 medications a day and receive physiotherapy on a weekly basis.

    Since the injury, my life has not been the same, I can no longer participate in social events, drive, exercise or do any other useful activities. Sometimes I cannot even take care of my own basic things like showering or shaving. My housemates currently assist me in cooking or in doing other basic things but I am physically disabled for the rest of my life.

    This has psychologically damaged me as well because I feel disable, I am out of patience and I have lost hope.

    Since my physical and emotional problems have increased, et times I have lost hope in life and have thought of taking my own life: My friends have helped me to heal and cope with my problems, I say a prayer to Jesus and I see a light at the end of the tunnel. That is all I need now and I know I will get to that light one day.

    This statutory declaration was prepared with the assistance of my migration agent [named]. [She] is also a qualified interpreter read this statutory declaration back to me in Persian.

    Evidence:

1. The Tribunal has before it a range of material, including, relevantly:

   §The applicant’s protection visa application form lodged on 25 June 2013 (“visa application”), including statement dated 19 June 2013;

   §The applicant’s identity documents;

   §The protection visa decision record (‘delegate’s decision record’) of 23 January 2015;

   §The review application form which included a copy of the delegate’s decision record;

   §Record of Entry Interview;

   §Interview with the delegate dated 1 September 2014;

   §Letter from [a named doctor] dated 16 July 2015;

   §Radiology Report dated 15 July 2015;

   §Statutory Declaration of the applicant dated 15 March 2016;

   §Decision of the previous Tribunal dated 29 March 2016;

   §Country information from the applicant’s submissions and other sources. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Iran, published on 7 June 2018.

   Country of reference / receiving country

2. The applicant claims to be an Iranian national. Based on the evidence provided to the Department of Immigration and Border Security (The Department) by the applicant, the Tribunal finds that Iran is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

   Hearing:

3. The applicant attended the hearing on 7 November 2019. The applicant was not represented. The hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a Protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

5. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Iran. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he is returned to Iran. The harm must be directed at him for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion.

6. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Iran.

7. The Tribunal confirmed that the applicant arrived in Australia [in] March 2013.

8. The Tribunal confirmed the background of the applicant and his family, as set out above.

9. The Tribunal noted that the Tribunal (differently constituted) had affirmed the decision of the delegate not to grant the applicant a Protection visa. The Tribunal noted the appeal process through the Federal Circuit Court of Australia, the remittal to the Tribunal, the further appeal to the Federal Circuit Court of Australia in relation to that second Tribunal decision.

10. The Tribunal confirmed the receipt by it of three documents from the applicant prior to the hearing. Those documents included a copy of the applicant’s Marriage Certificate (being his current marriage to an Australian citizen), a Divorce Certificate (being his divorce in Iran of his first wife) and a letter from [Pastor A] of the [Church 1].

11. The applicant confirmed that they were the only documents forwarded to the Tribunal.

12. The Tribunal asked the applicant when he left Iran. The applicant replied around [an earlier date in] March 2013.

13. The Tribunal asked the applicant how he departed Iran. The applicant replied that he flew out of Imam International Airport to [Country 1]. He said that he went from [Country 1] to Australia by boat. He spent eight days in [a city] before boarding the boat to Darwin.

14. The Tribunal confirmed that the applicant left Iran using a valid passport. The applicant confirmed that was correct.

15. The Tribunal asked the applicant where his passport was now.

16. The applicant replied that he gave his passport to the people smuggler. The Tribunal asked what happened to it then. He replied that the people smuggler threw his passport in the sea.

17. The Tribunal asked the applicant why he gave his passport to the people smuggler. He replied that he just followed the rest of the people.

18. The Tribunal asked the applicant whether he was scared of the people smuggler. He replied he wasn’t, but that he was scared of drowning.

19. The Tribunal then advised the applicant that the Tribunal was now required to consider whether there were circumstances that might prevent the grant of the Visa.

20. The Tribunal asked the applicant whether he had an explanation for disposing or destroying or causing the disposal or destruction of his passport. The applicant replied that he was worried about the people smugglers leaving them on the boat alone.

21. The Tribunal then discussed with the applicant that it was only necessary for the purpose of this review and the requirement of the provision for this Tribunal to find that there was not a reasonable explanation as to why he did dispose of his passport.

22. There are many explanations tendered by people in similar situations to the applicant as to why they destroyed or disposed of their passports. Such explanations have included:

    ·that the people smugglers made them destroy them;

    ·that they were fearful for their lives or safety if they didn’t follow the commands of the people smugglers;

    ·that everyone else was disposing of their passports;

    ·that their passports were confiscated;

    ·that they panicked when they saw the Navy.

23. The Tribunal is aware that according to a number of articles, it is "well known that agents or 'people smugglers' who arrange unauthorised passage for refugees will confiscate or order identity papers destroyed".[1] This could be for a number of reasons but likely because the people smugglers "who want to ensure there is no paper trail that might lead authorities to their eventual arrest".

    [1] Jay Fletcher, "Busting three asylum seeker myths", Greenieft Weekly (online) 11 July 2013 < Refugee Action Coalition, Why Do Asylum Seekers Destroy Their Passports? (.d.) <>

    It is also stated by the Refugee Advice & Casework Service ("RACS") that:

    People smugglers may confiscate documents or require people to destroy their documents In order to protect smuggling networks. In circumstances in which documents are retained by smugglers, the asylum seeker may be instructed by the people smuggler to tell Australian officials that the asylum seeker discarded the document.[2]

    [2] Refugee Advice & casework Service, Migration Amendment (Protection and Other Measures) Bill 2014 Submission by the Refugee Advice & Casework Service (Aust) Inc. (4 August 2014) page 10 <>

    The Tribunal noted that in the applicant’s situation, there were no smugglers on the boat, no guns, no policemen. The father and son operated the boat and by all accounts were friendly and provided food and support. Why then was it reasonable for the applicant to have thrown his passport overboard?

24. The Tribunal noted that in the applicant’s situation, he appeared only fearful of the people smugglers leaving him and his fellow travellers on the boat alone. He didn’t profess any fear of harm in the event of him not handing over his passport.

25. The Tribunal asked the applicant how many people were on the boat. He replied about [number] people.

26. The Tribunal asked the applicant whether he feared for his life at the hands of the people smuggler. He replied that he only feared drowning and being left behind and not knowing where to go. He was also fearful of there being no food on the boat. He went on to explain that there was no food for the last couple of days of their trip.

27. The Tribunal confirmed that the applicant appeared to have no fear for his life from the people smugglers. He confirmed that he only feared them leaving everyone behind.

28. The Tribunal explained to the applicant that it had concerns that he had knowingly disposed of his passport and that his fears of drowning and being left alone appear not to relate to the fact of him having handed his passport to the people smuggler. The Tribunal advised the applicant that it would consider his explanation further.

29. The Tribunal asked the applicant why he feared his former father-in-law. The applicant replied that his former father-in-law is his mother’s relative and that if he is required to return to Iran, his former father-in-law will know that he is back and will know that he has changed his religion.

30. The Tribunal asked the applicant about his family members in Iran. He replied that his father is deceased, but that his mother and brothers are still in Iran. He advised that he talks to his mother once a week. He confirmed that his mother has no contact with his former father-in-law.

31. The applicant also confirmed that his former father-in-law has made no threats to his brother. He did add, however, that in 2010, when he was getting his divorce settled, he sent his aunt to get the papers signed. He stated that his ex-wife’s family treated her badly. He did not elaborate on this.

32. The Tribunal noted from the applicant’s claims that he appeared to fear Mullahs generally. The applicant replied that Mullahs are powerful and will put him in prison and may even kill him.

33. The Tribunal asked the applicant when was the last time he saw his ex-wife. He replied that he has not seen his ex-wife since she left him.

34. The Tribunal asked the applicant when was the last time he saw his former father-in-law. He replied that the last time he saw him was a month or so before his wife left him. The Tribunal asked the applicant if he was sure about that. He replied he was. He went up north for work about a month before his wife was taken from him.

35. The Tribunal put to the applicant that in an earlier statement, he had said that he went to the Court to lodge a complaint against his former father-in-law but was told to wait and in an hour or so the police came and arrested him and that his father-in-law was with them at that time.

36. The applicant replied that he now remembered that and that it was true but stated that it has been a long time.

37. The Tribunal discussed some concerns that it had in relation to the timing of certain events.

38. The Tribunal noted that the last time the applicant had seen his ex-wife and former father-in-law was in 2005.

39. The Tribunal noted that the applicant did not leave Iran until March 2013. It had therefore been more than seven years that he remained in Iran following the alleged arrest and his sighting of his former father-in-law.

40. The Tribunal noted that it was now 2019, and in total, some 14 years since his last time contact with his former father-in-law.

41. The Tribunal asked the applicant why his former father-in-law would still be interested in him after all of this time and noting in particular, that his former father-in-law appeared to have no interest in him during the seven years or more that he remained in Iran following his separation from his former wife. The Tribunal further noted that the former father-in-law had not bothered his mother or his brother in that time – in fact, there had been no contact at all.

42. The applicant replied stating he believes they are revengeful people.

43. The Tribunal reminded the applicant that his former father-in-law had not been revengeful during the seven years or more that he remained in Iran before he ultimately left in 2013. The applicant replied that his former father-in-law didn’t think he would leave the country.

44. The Tribunal discussed the applicant’s arrest which he claimed followed him making a complaint against his former father-in-law. The applicant nodded, agreeing that was the case.

45. The Tribunal noted that following the arrest he had managed to run away.

46. The Tribunal confirmed that the applicant left through Tehran’s International Airport by use of his valid passport.

47. The Tribunal confirmed that the applicant left Iran without any issues or problems. It confirmed that there were no concerns raised about his outstanding arrest. The applicant confirmed there were no issues when he left.

48. The Tribunal discussed an extract of Country Information that emphasised the sophisticated security processes employed at Iran’s airports.

49. Country Information describes the process for passing through Imam Khomeini International Airport, Tehran:

    “The first security check takes place upon entry from the public area into the terminal area for travellers only. The passenger’s luggage will be checked at this point. The luggage goes through a scanner and if anything looks suspicious, the Immigration police will take the person aside and open the suitcase. The passport of the person travelling is checked and the person passes through a detector (women and men go through separate detectors). This check is the responsibility of the Immigration Police.

    After passing through the luggage check the passenger goes to the check-in counter. At the check-in counter, flight personnel will check in the passenger’s luggage, check the visa and issue a boarding pass. If anything is wrong in terms of visa or passport, the flight personnel will contact the Immigration Police.

    After check-in, the passenger goes to a counter where Immigration Police conducts a third security check. The Immigration Officer sits inside a booth behind a glass window. He checks the passport and personal information on a computer system.

    The passport and the exit visa are verified. The data of the passport holder appears on the screen, together with a photograph of the traveller. If the person is married and has children, the photos and names of his wife and children will also appear on the screen. If the passport holder is registered on a list of individuals who have an outstanding issue with the government or for other reasons are not allowed to leave Iran, this information will appear on the screen.

    When the security check is completed, and if the person is allowed to leave Iran, an exit stamp will be stamped in the passport. The person travelling now enters the duty free zone.

    Before entering the area with flight gates, yet another security check is conducted. This is a physical check where the hand luggage is scanned and the passenger goes through a metal detector. This security check is conducted by the Revolutionary Guards. The Immigration Police and the airline personnel conducted the previous checks.The very last check is done just before boarding, where the traveller shows his or her boarding pass. Airport personnel conduct this check.”[3]

    “After leaving the aircraft the person enters an area with counters for passport checks. There are separate counters for foreigners and Iranians. The Immigration Police who are sitting inside a booth behind a glass window conduct this security check. The Immigration Officer scans the passport and registers all the personal data from the passport of the arriving passenger in the computer system. The personal information is already registered in the computer system. The information includes a photograph of the passport holder and this photograph appears on the screen. The Immigration Officer checks the validity of the passport and if the person is entering Iran on illegal grounds or has outstanding issues with the authorities he will be held responsible in accordance to Iranian law, rules and regulations.

    If the passport cannot be scanned by the computer system, the Immigration Officer will enter the passport number manually.

    According to Sajdrabi, the computer system is a few years old and has been able to identify forged visas, passports and other documents.”

    [3] Danish Immigration Service 2009, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc: Fact finding mission to Iran 24th August – 2nd September 2008, April, 87E00CD0EB83/0/iran_report_final.pdf?bcsi_scan_80CA22F9AD71C623=0&bcsi_scan_filename=iran_report_ final.pdf

50. The Tribunal discussed County Information from the DFAT Report with the applicant in relation to Christianity:

    Article 13 of the Constitution states that the Zoroastrian, Jewish, and Christian religions are the only recognised non-Muslim faiths in Iran. It gives adherents of these religions the freedom (within the limits of the law) to perform their own religious rites and ceremonies, and to comply with their own canon in their personal affairs and religious education. Adherents of the three recognised religions are permitted to hold religious services, run places of worship and religious schools, and celebrate religious holidays.[4]

    Despite the protections afforded to them through their constitutional recognition, members of the recognised religious groups face significant official and societal restrictions. By law, non-Muslims may not serve in the judiciary, the security services, or as public school principals. Non-Muslims seeking public sector employment or intending to run for public office are at a disadvantage compared to Muslims due to the requirement that all such candidates or applicants undergo the gozinesh review. Government workers who do not observe Islamic principles and rules are subject to penalties, and may be dismissed or barred from work in particular sectors.[5]

    DFAT assesses that members of recognised religions face a low risk of official discrimination. While they enjoy the benefits of official recognition, the structure of the Islamic Republic inevitably favours the Shi’a Muslim majority to the exclusion of others. The risk of societal discrimination, including violence, is low, but may be heightened at times when external factors come into play.[6]

    DFAT assesses that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly, low-level harassment. Members of larger congregations that do engage in proselytisation and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution. The leaders of such congregations are at particular risk in this regard.[7]

    [4] DFAT Report, paragraph 3.23

    [5] DFAT Report, paragraph 3.24

    [6] DFAT Report, paragraph 3.29

    [7] DFAT Report, paragraph 3.35

51. The Tribunal asked the applicant what he made of that Country Information and how he was able to leave Iran. The applicant replied that he hadn’t killed anyone.

52. The Tribunal noted the applicant’s claim about being a failed asylum seeker.

53. The Tribunal shared Country Information with the applicant in relation to returning failed asylum seekers:

    Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, 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.[8]

    The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. Authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.[9]

    According to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. 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 posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.[10]

    [8] DFAT Report, paragraph 5.23

    [9] DFAT Report, paragraph 5.24

    [10] DFAT Report, paragraph 5.25

1. The Tribunal noted then that the Iranian authorities paid little attention to failed asylum seekers on their return to Iran.

2. The Tribunal asked the applicant whether he had any comment on that Country Information.

3. The applicant replied that the authorities might say they don’t care about failed asylum seekers but they do. He went on to state that even if the authorities killed them, they wouldn’t care.

4. The Tribunal discussed with the applicant what he would do for employment if he had to return to Iran. The applicant replied that he hasn’t worked for a while as his visa doesn’t allow him to work in Australia.

5. The Tribunal noted that but asked what he would do for work if he had to return to Iran. He replied that he would be self-employed as either [of two occupations].

6. The Tribunal recalled evidence adduced at the first Tribunal hearing in relation to a [specified] injury. It asked whether the applicant had had the surgery on [this injury] which had been anticipated at the time of the first Tribunal hearing. The applicant replied that he had not had [this surgery]. He went on to state that [this injury] will hurt if he works and that he relies on medication.

7. The Tribunal noted Country Information[11] that Article 29 of the Constitution states that every Iranian has the right to enjoy the highest attainable level of health. It noted that healthcare is a major government priority and that Iran has good health indicators by regional standards. It also noted that all Iranian citizens are entitled to basic healthcare coverage provided by the government and 90% have health insurance.

   [11] DFAT Report, paragraph 2.18.

8. The Tribunal asked the applicant what it was that he feared in relation to his Christianity. He replied that in Iran, you have to pray and go to church without anyone knowing that you are doing so. He claims that if someone does find out, you will go to prison and you won’t get employment.

9. The Tribunal noted from evidence tendered at the first Tribunal hearing that the applicant claimed to have no religion in 2016. The Tribunal confirmed that the applicant was making no claim about that. The Tribunal discussed that lots of Iranians choose not to attend mosque. The applicant agreed, stating that Mullahs have put everyone off being Muslim.

10. The Tribunal asked the applicant about his Christian faith.

11. The applicant stated that it began about three years ago.

12. The Tribunal asked the applicant what it meant to him to be a Christian. He replied that it meant being born again.

13. The Tribunal asked about his Christian observance. The applicant replied that he began going to church regularly after his Baptism in June 2016. The Tribunal asked the applicant what he meant by “going to church regularly”. The applicant replied that he tries to go once a week but sometimes he doesn’t as he has [specified] pain or sometimes he has no petrol for the car.

14. The Tribunal noted that the applicant was married in a church in September 2017. It noted that the applicant’s wife was not Christian and so enquired as to why they were married in a church. The applicant replied that it was because the Pastor helped him.

15. The Tribunal explained to the applicant that it needed to consider whether the applicant had truly “converted” to Christianity and to consider whether his faith was enduring.

16. The Tribunal noted the reference from [Pastor A]. In that reference, the Pastor states that he has known the applicant for three years through an Iranian Bible Study at [Church 2]. The reference notes that the applicant has attended various Christian churches over the past few years. The Pastor believes the applicant is a genuine Christian, though still young in his faith and needing more discipleship to grow strong. The Pastor believes the applicant to be honest and he has observed changed in him showing that he is gradually growing in his Christian faith. He states that the applicant loves to learn about Jesus and the Bible and studies independently what he has been taught and reflects well on what he is learning. The Pastor notes that he helped baptise him in June 2016 and also officiated at his wedding in September 2017.

17. The applicant stated that he now lives better than when he was a Muslim. He states that he now has faith when as a Muslim he did not.

100.   The Tribunal asked the applicant whether, if he went back to Iran, he would still practice as a Christian.

101.   The applicant replied that he now has faith but asked how he would practice in Iran. He said he would have to be discrete and that is a problem. He said if ordinary people find out or the government finds out, they will bother him.

102.   The applicant stated that he knows some Christians in Iran and they say they are uncomfortable.

103.   The Tribunal also noted from Country Information that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to converting to Christianity.

104.   The applicant was invited to comment on that Country Information. He replied that ordinary people won’t give him jobs.

105.   He restated that if ordinary people know that he is a convert, they won’t give him jobs.

106.   The Tribunal took evidence from the applicant’s wife. She stated she is not a Christian and is agnostic but stated that she does accompany the applicant to church.

107.   She stated that she likes the people at church, they are very friendly and kind. She said that sometimes she gets involved.

108.   The applicant’s wife stated that she is scared for him. The Tribunal asked whether she would return to Iran with him if he was required to go back. She said she would go back with him but is scared about his family and his religion. She states that she could not live without him. She also states that she is prepared to travel anywhere to be with him.

Assessment of Claims and evidence, and findings:

109.   The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

110.   The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.

Credibility

111.   The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

112.   The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

113.   The Tribunal was mindful of the nuances when communicating through an interpreter and clarified the applicant’s evidence throughout the hearing to ensure accuracy of understanding and that they understood Tribunal concerns. The Tribunal checked throughout the hearing that the interpreter and questions were understood and each time the applicant said he understood the interpreter.  The Tribunal considered that the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way. The Tribunal told the applicant that he may have breaks during the hearing as well to allow a break for him and the interpreter.

114.   The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

115.   The evidence of the applicant provided at this hearing was, in some respects, consistent with evidence previously given to the delegate and to the first Tribunal, but there were numerous instances of inconsistency and contradiction. The Tribunal found the applicant’s evidence unconvincing and, in most part, his claims to fear persecution not at all compelling.

116.   The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he disposed of or destroyed an identity document.

117. Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added).  Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship.  However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant:  first, has a reasonable explanation for the provision, destruction or disposal;  and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act.  Section 91WA is extracted in the attachment to this decision.

118.   The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date[12], including this application.

[12] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015

Did the applicant dispose of or destroy documentary evidence of his identity?

119.   The applicant gave evidence confirming that he had disposed of his passport by giving it to a smuggler who then threw it overboard.

120.   Having considered all of the evidence the Tribunal finds that the applicant caused the destruction or disposal of his passport being documentary evidence of his identity, nationality or citizenship.

Does the applicant have a reasonable explanation for disposing of documentary evidence of his identity?

121.   The Tribunal queried the applicant extensively about his reasons for handing his passport to the smuggler. It appeared to the Tribunal that he didn’t fear the smuggler per se, and didn’t appear to fear for his life on the boat – more a case of fearing the smuggler leaving them on the boat alone.

122.   The Tribunal struggled to draw a nexus between disposing of his passport and that fear. For instance, would the smuggler leave them on the boat because they didn’t hand over their passports? That did not appear to be the case. He did not speak of any threat or demand in relation to the handing over of his passport, he spoke only of handing it over when others did.

123.   However, in the applicant’s favour, he has provided evidence of his identity to the Department, and has not, on the basis of the evidence before the Tribunal, sought to actively conceal his identity to Australian authorities.

124.   The Tribunal has determined to give the applicant the benefit of the doubt as to his motives in disposing of his passport – it likely that he simply followed the actions of everyone else in handing the passports over.

125.   Consequently, the Tribunal went on to consider the applicant’s claims.

126.   The Tribunal accepts that the applicant’s father-in-law was [Leader A].

127.   The Tribunal accepts that the applicant had a difficult, if not hostile, relationship with his former father-in-law.

128.   The Tribunal accepts that the applicant’s wife left him in 2005, in circumstances where her father took her away.

129.   The Tribunal accepts that the applicant has not seen his former wife since 2005.

130.   The Tribunal accepts that the applicant may have attempted to complain about his former father-in-law to the authorities. The Tribunal however finds the applicant’s evidence as to being arrested, seeing his former father-in-law at the police station or Courthouse at the time of his arrest and his ultimate escape to be less than convincing. During the hearing, the applicant stated that the last time he saw his former father-in-law was about one month prior to his wife leaving him. He recalled that it was about one month as that was the period of time that he was away “up north”. It was only when the Tribunal reminded him of evidence provided to the first Tribunal and in his written statement of him having seen his former father-in-law with the police at the time of his arrest that he recalled that event.

131.   Coupled with the applicant’s own evidence that he left Iran through an international airport without incident and by using his own legal passport, together with Country Information about security arrangements at Iranian airports, leads the Tribunal to conclude that the applicant was not arrested and has not been sought by the police. The Tribunal accepts the applicant’s primary evidence at this hearing that the last time he saw his former father-in-law was one month prior to his wife leaving him. The Tribunal does not accept that the applicant was at any time arrested by the police as a consequence of him making a complaint about his former father-in-law, or that he escaped arrest and does not accept that he remains of adverse interest to the police.

132.   Furthermore, on the applicant’s own evidence, he has had no contact with his former father-in-law, former wife or any of her family since 2005. His mother, who is related to his former father-in-law, has no contact with the former father-in-law. In addition, the applicant’s brother has not received any attention at all from the former father-in-law or any member of his family.

133.   The Tribunal discussed with the applicant that he remained in Iran for over seven years after his wife had been taken from him. Whilst his written claims allude to him moving around and living in different places, his evidence to the Tribunal was that he has had no contact with his former father-in-law. Apart from a speculative statement that he believes his father-in-law is revengeful, the applicant could provide no reason as to why the former father-in-law would have any interest in him. His explanation that his father-in-law didn’t expect him to leave Iran is not logical given that he had remained in Iran in excess of seven years after his wife left him and without incident. That was an extended period in which his former father-in-law could take revenge.

134.   For these reasons, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of his former father-in-law, any of his relatives, the police or any Iranian authorities or anyone else now or in the reasonably foreseeable future.

135.   The applicant stated in evidence that the Mullahs are powerful and will put him in prison and may kill him. That statement was made in relation to a discussion about the behaviour of his former father-in-law.

136.   The applicant proffered no further evidence in relation to this claim. The Tribunal noted that the applicant had stated that he did not practice a religion in Iran but also noted Country Information that supported that a large number of Muslims did not attend mosque or attend prayers. The applicant had not made any claims in relation to his non-observance of the Muslim faith whilst he lived in Iran and did not do so at the hearing.

137.   The applicant made a further statement that the behaviour of Mullahs was driving Muslims away.

138.   The Tribunal accepts that the applicant has strong views in relation to the behaviour of his former father-in-law but that his evidence in relation to his opposition to the Mullahs and their interest in him to be vague and, at best, very general in nature.

139.   The Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Mullahs or any particular Mullah or the Iranian authorities on the basis of him having anti-Islamic views or being imputed with political views that are opposed to the Iranian regime on the grounds of his failure to attend mosque or attend prayer.

140.   The Tribunal accepts that the applicant had a [specified] injury in and around 2015 to 2016. Medical reports provided to the first Tribunal were silent as to the applicant’s capacity to work. No further medical evidence has been produced since that time. The applicant has had no surgery in relation to [this] injury.

141.   The applicant spoke of his capacity to be self-employed as either [of two occupations] should he be required to return to Iran. It was only after the Tribunal reminded the applicant of his past [injury], did he note that his [injury] will hurt if he has to work. At that time, the applicant advised of his reliance on medications.

142.   The Tribunal had considered Country Information that advised of an advanced health system in Iran and that Iranians were able to rely on a government supported health system. The Tribunal is confident that the applicant could obtain medications if required.

143.   The Tribunal does not consider that there is a real chance that the applicant would suffer serious harm in Iran by reason of his [specified] injury.

144.   The applicant claimed to have converted to Christianity. As a consequence, he claims to fear ordinary people and the authorities finding out about that conversion if he was to return to Iran.

145.   The Tribunal accepts that the applicant has been baptised into the Christian faith in June 2016 and also notes that his wedding took place in a church in September 2017. The Tribunal does not accept that such ceremonies alone are conclusive of conversion to a new faith.

146.   The Tribunal accepts the written reference from [Pastor A] that the applicant has attended an Iranian Bible study at [Church 2] and further accepts that the applicant has attended various churches during the past three years.

147.   The Tribunal notes that the applicant claims to try to attend church once a week, but sometimes is unable to do so due to [his specified] pain or for financial reasons.

148.   The Tribunal accepts that the applicant’s wife is not a Christian, though sometimes accompanies him to church.

149.   The Tribunal accepts Country Information discussed with the applicant that non-Muslims may not serve in the judiciary, in security services, as public school principals or as public servants. The Tribunal notes that the applicant aspires to no such position.

150.   The Tribunal accepts Country Information that advises that members of recognised religions (including Christianity) face a low risk of official discrimination. Furthermore, it accepts that small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities.

151.   The Tribunal accepts that members of larger congregations that engage in proselytization, and leaders of such congregations, may be at risk of arrest and prosecution.

152.   It is clear to the Tribunal, however, that the applicant does not engage in proselytization and is not a leader within his church. The applicant is uncertain as to whether he would, or indeed how he would, practice his faith in Iran should he return. It is evident that he has not sought to convert his wife to Christianity.

153.   The Tribunal does not accept that the applicant has a deep and enduring faith in Christianity. It does not accept that the applicant would publicise his religious views or the fact of his Christian baptism should he return to Iran. He has not considered it. The Tribunal accepts that the applicant would most likely not resume attending mosque, but would not, on that basis, be precluded from accessing medical treatment in Iran or be denied jobs by the government or ordinary people on account of having anti-Islamic or anti-government views.

154.   The Tribunal discussed Country Information in relation to the treatment of returnees by failed asylum seekers. The applicant departed Iran legally using a valid passport. He was of no adverse interest to authorities when he left Iran and Country Information suggests that Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Furthermore, Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran including in converting to Christianity.

155.   The Tribunal does not consider that there is a real chance that the applicant would suffer serious harm at the hands of the Iranian authorities on the basis of being a failed asylum seeker if he returns to Iran, now or in the reasonably foreseeable future.

156.   The Tribunal also notes the large number of people who have left Iran to study abroad and that they are welcomed back and offered government positions. Consequently, the Tribunal does not accept there is a real chance that the applicant will be subjected to serious harm on the basis of him returning from a western country, now or in the reasonably foreseeable future.

Refugee findings:

157.   For the reasons set out above, the Tribunal does not consider that there is a real chance that the applicant would suffer serious harm on the grounds of any imputed political opinion, his relationship with his former father-in-law or members of his family, any Mullahs or a particular Mullah, his claimed Christian conversion or faith, or his attempts to seek asylum in Australia, his departure from Iran, or any other reason if he returns to Iran now or in the reasonably foreseeable future.

158.   Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iran. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Cumulative findings:

159.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of any imputed political opinion, his relationship with his former father-in-law or members of his family, any Mullahs or a particular Mullah, his claimed Christian conversion or faith, or his attempts to seek asylum in Australia, his departure from Iran, or any other reason if he returns to Iran now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Iran. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.

160.   The Tribunal has considered the applicant’s claims under complementary protection.

161.   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). In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

162.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Iran now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition.

163.   The Tribunal notes the applicant’s claim that he will be unable to obtain employment because of his Christian conversion.

164.   The Tribunal has noted the applicant’s work history in Iran and noted his evidence that he would go to Iran and be self-employed as [one of two occupations].

165.   The Tribunal noted the limitations he claims to employment by virtue of his [specified injury]. The Tribunal has already found that in the absence of any sustainable claims to protection, the applicant will be able to return to Iran and enjoy all the benefits of citizenship of Iran, including public health care.

166.   Having rejected the applicant’s claims as to persecution by the authorities on account of his Christian conversion, the Tribunal does not accept that he will be denied employment by reason that local people won’t hire him. There is not a real risk that he will suffer significant harm.

167.   Given the Tribunal’s findings above, it is satisfied that the applicant does not face a real risk of significant harm in Iran for reasons of any imputed political opinion, his relationship with his former father-in-law or members of his family, any Mullahs or a particular Mullah, his Christian conversion or faith, or his attempts to seek asylum in Australia, his departure from Iran, or any other reason if he returns to Iran now or in the reasonably foreseeable future.

168.   The applicant made a closing and final remark that he wanted to stay in Australia and didn’t want to be separated from his wife.

169.   The Tribunal has considered whether a claim of significant harm arises as a consequence of the applicant being separated from his wife who is an Australian resident. Whilst not specifically claimed, the Tribunal has given consideration to the possibility that there may be psychological harm suffered by the applicant.

170.   In SZRSN v MIAC [2013] FCA 751 the Federal Court found that separation of family members could not amount to ‘significant harm’ as defined in s.36(2A) because it is harm arising from the act of removal itself, and also because it would not meet the ‘intention’ requirement. The Tribunal notes that this case involved the separation of the applicant from his children in Australia, but the Tribunal is satisfied that it is indistinguishable from the present case of applicant spouses being separated from each other.

171.   Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Iran now or in the reasonably foreseeable future. 

172.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

173.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

174.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran that there is a real risk that he will suffer significant harm.

Overall conclusion:

175.   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 s.36(2)(a).

176.   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).

177.   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

178.   The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Michael Hawkins
Member

ATTACHMENT - Extract from Migration Act 1958

Section 91WA  Providing bogus documents or destroying identity documents

(1)  The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)  the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

(b)  the Minister is satisfied that the applicant:

(i)  has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii)  has caused such documentary evidence to be destroyed or disposed of.

(2)  Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)  has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b)  either:

(i)  provides documentary evidence of his or her identity, nationality or citizenship; or

(ii)  has taken reasonable steps to provide such evidence.

(3)  For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.