1730467 (Refugee)

1730467 (Refugee) [2021] AATA 2782 (13 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730467
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:13 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2021 at 5:17pm
CATCHWORDS
REFUGEE – protection visa – Iran – in breach of security undertaking to not participate in protests or attack security officials – conversion to Christianity – political activities – presence at stoning – failed asylum seeker – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
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 and Border Protection on 22 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 22 June 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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Obligations Assessment Statement
[Details deleted].
[Details deleted].
ITOA Assessment Letter
[Details deleted].
[Details deleted].
Protection Visa Application
[Details deleted].
[Details deleted].
[Details deleted].
[Details deleted].
[Details deleted.
AAT Hearing
The applicant was asked whether he knew everything that was in his protection visa applications and his entry to Australia questionnaire and knew it to be correct and he said that he did. Asked about some documents that had been handed to the member regarding mental health treatment he said that he thought others had been sent but wanted the Tribunal to have all of the documents.
Asked if this represented the entirety of his mental health treatment that he had received in Australia he said that it did. It was put to him that there was a record from August 2013 and the next was from September 2017 and he was asked if there was any treatment in between, he claimed those were all the records that he had. It was put to him that the Tribunal assumed that he knew what he had submitted and he agreed that he did.
Although it He was asked if he was medically able to attend the hearing and he said that he was.
He did not work in Australia and he had been on welfare but Centrelink had stopped and he was staying with a friend for no rent. He was married in Iran and came to Australia but they separated after arriving. Asked when he married in Iran, he said it was three years prior to leaving the country. Asked when that was, he claimed it was about 14 years ago and he said it was about 2007.
Asked when they separated, he claimed that about seven years ago they separated, then re-joined for two years then separated again. Asked when he separated he said he thought it was about 2012 but couldn’t remember exactly. They were living in [one suburb] when married but when they separated they were in [a second suburb] (her) and he to [Suburb 1].
In order to see his children he would visit and this led to their relationship improving and they began living together again. Asked when they did this he said that they didn’t live, he would visit with her. She moved to places in [two suburbs] and then given social housing. He still visits her but they don’t live together. It was put to him that he claimed they separated a second time and he was asked when this was. He claimed that he had made a mistake and they never lived together a second time. The Tribunal said it understood but he was asked when they separated the second time (in an emotional rather than physical sense).
He said again that they never lived together and he was asked if they had problems now, and he said that he still went and he would go there for maybe two hours or his wife would bring the children out but they weren’t compatible. Asked why they didn’t divorce given it had been nine years since they separated. He said they separated in 2013. Asked why they hadn’t divorced given they were incompatible (his words) and had separated eight years ago.
He claimed that neither of them applied for divorce. They may have done it without children. It was put to him that they could formalise access to children if they divorced – the Tribunal didn’t understand why they didn’t divorce. He said that he didn’t intend to re-marry so he didn’t get divorced and thought it better for the children. If she wanted to divorce they could in the future. The children were [age range]. She had two children from her ex-partner who were adults and they also came to Australia after the applicant (they came by boat).
Asked to confirm they hadn’t lived under the one roof since 2012, he agreed. Centrelink knew they were separated – asked when they told Centrelink, he said they knew since they were separated. They were originally paid as partners but were now paid separately. It was put to him that the Tribunal had heard that people may appear separated in order to access more money, and he was asked if being paid separately was more than they were paid when they were together. He claimed that he didn’t know but they were living separately. His children’s names were Tina and Dina.
Asked to confirm that his claim for protection had nothing to do with his wife or childrens’ claims, and he agreed. He claimed that if he returned to Iran, he was certain that he would be harmed because he had two clashes when in Iran and had run away. Asked to be more specific, he claimed that he was detained/arrested two or three times and he would be jailed and tortured and possibly executed. This would be done by officers from Sepah and prison officers to whom he was known. He had left Iran despite being on an undertaking to report to the authorities.
He had a letter from the court to report to them. He had to sign documents two or three times. Asked if he had been charged with an offence that required him at court, he claimed that he had been charged and they sent him a letter to report to court but he didn’t attend. He had been charged because he had clashed with security officials. Asked what the specific charge was, he claimed that he had an encounter with an officer and he ran away and they broke the windows of his car, he was recognised by the officers and that his son told him that there was a letter for him to report and he ran away.
He was asked again what the charge was, he said that he was detained twice at the street protests. Asked again if he knew what the charge was, he said there was a letter from court. It was put to him that he must have been charged with something to be asked to appear at court. It was put to him that there was a Penal Code in Iran as there was a criminal Code in Australia – he was asked what the name of his charge in Iran was.
He again said it was because of the clashes with the security officer because he had signed an undertaking not to attend protests and not to attack security officials. Asked if he had a copy of the court summons, he claimed that his first wife and son were living separate from him and the letter was sent there but his ex-wife wouldn’t send it on to him. His ex-family was living in [location] and when he came to Australia he asked his wife to send it to him but she didn’t. He doesn’t get on well with his ex-wife but communicates with his children. He used to see his children but he didn’t go to that house in which they were living, because he was separated from his first wife, even though he owned the property. He had always lived in that property and had bought it jointly with his first wife.
Asked if he feared serious harm for any other reason, he claimed that he knew he would be arrested and tortured. Asked if he felt this fear for any reason other than his claim with respect to Sepah, he claimed that he had been imprisoned two or three times and they had his record so he would be arrested again. He had been beaten and a property title had been registered in order to get him out. At this point he was again asked to answer the question he was asked.
It was pointed out to him that he had only made one claim to fear serious harm in Iran at this stage and was asked again if he had any other claims, and he said that the messages that he was exchanging with people that he knew was his second claim. Asked what serious harm this represented, he claimed that he sent them through [social media] and he would be tortured by Sepah because of his record, because he failed to report and because he no longer believed in Islam. Asked how this was connected to his [social media] messages, he said they were political and anti-religious postings.
Asked about his religious status and why he thought it would get him in trouble in Iran, he claimed that he had converted because of what he had seen of the Islamic Republic. He had converted more than two years ago to Christianity. Asked how he did this, he claimed that he went to the pastor in [Suburb 2] and was now baptised. Asked the name of the church and whether he had his baptismal certificate, he said the church was [Suburb 3] church. Asked the name of the church, he claimed that he forgets these things. He has the certificates and record of attendance at home and he was asked why he didn’t bring it.
It was put to him that he was making a new claim to have converted so it was pretty obvious that he would need to bring some evidence, and he claimed that the reality was that his whole life was impacted by his memory issues. It was put to him that he remembered to bring all his medical documentation so it is reasonable to think he would have brought his religious documents. He claimed that he had given evidence about dates and the like wrongly previously which was why he brought these documents.
He claimed that he forgot things – he had even forgotten things about Islam despite being Muslim for 45 years. Asked what branch of Christianity he was, he initially repeated his attendance with the pastor. He then said that he forgot the name of the branch that he was a member of. He was then asked what happened in easter from Holy Thursday to Easter Sunday given he had been a baptised Christian for two years, and he claimed he had written these things but nothing stays in his memory.
Asked if anyone else in his family had been baptised, he claimed that his wife in Australia used to go to church. She had been baptised – asked when this occurred, he said he didn’t know exactly when but about 18 months ago. She went to the same church as him and he saw them there with the children and her son from her previous marriage. Asked if this was a coincidence, he claimed that he was going there with his friend when he saw her but he now went to [Suburb 3]. He knew his wife was going to the church and attending class there.
Asked if it was a Farsi-speaking service, he claimed that after the initial part of the service, they were separated and Farsi speakers went somewhere else. In [Suburb 2] they went to bible classes. He went to the same classes as his wife. The [Suburb 2] classes wound up and he then went to [Suburb 1].
Asked if he began going to church after he was refused protection in Australia, he claimed that he used to go to church, even when he was in Tehran. He claimed that he didn’t want to get into trouble and so he went in a clandestine manner. Asked if he had ever mentioned this churchgoing in Iran in any interview or in any written submission, he claimed he didn’t remember and there was a 50 per cent chance that he had.
Asked if he had only started attending church after his protection visa was refused, he said he had gone prior to that. Asked where he had gone he said that he went to Weatherall Park about two or three years ago. Asked if it was after his visa was refused, he claimed that this was prior to being refused. Asked if he had ever mentioned this to any Australian government official either verbally or in writing, he claimed that he couldn’t remember.
Asked if anyone in Iran knew he had converted, he said they definitely did. Through social media it was easy for all his family to know and some weren’t happy. Asked if he had a publicly accessible social media site, he claimed that he sent messages and rang his family and criticised Islam and talked about Jesus Christ. Asked again about his social media sites, he claimed that he did. Asked if he had things reflecting his Christian faith on it, he claimed there was. There were photos on his mobile of his classes that he attended. He was asked about whether it was on Facebook, and he said that he didn’t have a Facebook account but that the things he told other people were on church friends’ Facebook sites. He didn’t know how to put things on Facebook. It was put to him that he had children and people at his church who could help him so it was strange that there was nothing on his social media sites. He again said he couldn’t learn how to use a mobile but sent messages through [social media]. It was put to him that [social media] was encrypted so he didn’t appear to be keen to tell people about his new faith. He said the material was in Facebook but he didn’t know the details.
Asked how Sepah would know he had converted, he claimed that he had rung a few people in Iran and they all knew this. Asked again how Sepah would know and he again said that he told his family and friends, but he also had a friend who used to be in Sepah. He was also told about s 5J(6) and it was put to him that he had been asked today whether he had told anyone that he had attended church in Iran and he had said there was a 50:50 chance that he had and that he had attended church at [a suburb] before he received a negative assessment from the Australian Government.
The member had listened to his interviews and he had made no mention of his church attendance and nether had he mentioned any interest in Christianity. There was also no mention of interest in Christianity nor church attendance in Iran or Australia in his written statements over the last ten years. The concern was that he had never attended churches prior to his visa decision and this may go to issues of his credibility. He claimed that he forgot things and he had medical reports that said three doctors reported that he forgot things. They have tested the function of his brain. It was put to him that three doctors had not said this. He claimed they had tested his brain.
He was also told about s 5J(6) and it was put to him that given there had been no religious references in multiple applications over seven years yet after his final refusal he appeared to have found Christianity so the timing of his alleged conversion appeared suspicious. He didn’t know the name of the church he was baptised at, what branch of Christianity he belonged to or even what happened at Easter. This all raised serious concerns that his conversion was not genuine. He said that even though he had been a Muslim for 50 years he couldn’t answer questions about Islam because of his memory problems.
Regarding his claim about running away from his court appearance he claimed that he was arrested twice, detained and tortured. Asked what caused him to be arrested, he said he had been in street protests. He had told his story in Australia many times and even if he was to appear 50 times he would not be able to remember things. Asked if this was his answer to the question, he claimed that he demonstrated during Moussavi’s time and it occurred on the day of Ashura.
They went to the street to march and were detained. Asked why they were marching, he said it was against the Islamic Republic. It was against the regime but he could not recall what year but it was in his file. He didn’t even know what year it was in Iran. Asked what things he was protesting about, he claimed that they were supporting Moussavi against Khamene’i – during an election. Asked if it was the 2009 election he claimed that he could not remember dates. What he said was approximate.
He was a Musavi supporter and had been since the beginning until he left the country. The actual arrest occurred because of this. He agreed that he had been a long-term Musavi supporter – since he was prime minister. Asked if he was happy that he announced his candidacy for the presidency, he said he forgot this bit but had said it previously. Musavi was not a good man but he was better than the others.
Asked who the other candidates from the reformist camp were, he said that there was Musavi, Rafsanjani, Ahmadinejad. Asked if he wanted Musavi to win that election, he agreed that he did. Asked again how long he had been supporting Musavi he said it was since he had been prime minister. He voted for Musavi in the presidential election in the election where the votes were changed – he couldn’t remember the year.

Regarding his arrest, he said he was taken to a detention centre for a few days and he was harmed. They were tortured and after a few days he had to lodge an undertaking and he was freed. Asked how many people were at the protest, he claimed that he wasn’t everywhere but he guessed two or three thousand people. Asked why he was singled out for arrest, he claimed that many were detained. People were just grabbed.
Asked if he had injuries from his torture, he claimed that Sepah tortured him and with a sharp object they injured the side of his chest and the mark was still there. The injury was the second time he was detained. The first time he was detained he was lashed on his feet. Asked if there was any photographic evidence of this, he said one didn’t take photos when it happened but he had a scar on his side. He was asked if he took photos when he got home, and he claimed that only those with a long-term plan to apply for asylum or for highlighting their case overseas took photos.
Asked when the summons arrived, he claimed that when he came to Australia his friends told him that he should have brought documents. Asked how long they arrived at his former wife’s house before he came to Australia, he claimed that about two-three months before he left Iran these letters were sent to that house.
Asked if it was the house they had bought, he said this was the case. If he had gone to this house he would have been arrested. He had lived in the house for about 12 years. Asked where he moved to after his divorce, he claimed that he was living with his second wife for three years in Iran. Asked where they lived, he said they rented a place in another suburb. This was why Sepah didn’t have the address of his residence as they still had his old address.
Asked if he had to change his address, he asked who there was to tell. Asked what type of place they (he and his second wife) moved into, he claimed that they moved into an apartment in Aftabad. It was a rented place. Asked who they rented it from, he claimed that they rented it through a real estate agent and it was in his second wife’s name. He remained working at his normal work.
He had a scar under his arm from the injury he received after his pro-Musavi protest. Asked if he had been injured any other time, he said his right knee was also injured during this clash. Asked if he had served in the military, he said that he had but only for one year but he was exempted because of his memory impairment. They took a recording of his brain and said that he had memory problems and felt dizzy and he was exempted from military service.
Asked if he got on with his children from his first wife, he claimed that he did and always got on well with both of them. He was asked about an issue concerning a potential data breach in Australia where peoples’ names may have been uploaded for a period of time, and he said he remembered this. Asked if this was a claim he said it was. Asked what he thought may happen because of this, he claimed that he was contacted by the organisation to tell him it had occurred.
Asked if anything had happened to anyone in Iran because of it he said that he didn’t know. Country information was put to him that it appeared the Iranian authorities didn’t access that information and even if they had, country information indicated that the Iranian authorities weren’t interested in failed asylum seekers with no political profile.
He was asked about a claim that he had been in a fight with a militia member in Arak after he saw a stoning. He claimed that he was working in Arak for a short time and he heard there was a stoning so they went there and this affected him and he had a clash with the officers who brought this couple to the stoning. They placed him in the same car they had brought the couple to be stoned.
He was detained for a few days and then had to sign an undertaking. Asked if anything else happened he said that he was tortured and made to sign the undertaking. Asked if anything else happened in Arak, he said that he left Arak after this. If he stayed any longer the authorities would have created another problem for him. Asked how many people were stoned, he said there were three or four. It was put to him that he had said there were two people in the car. He said that there were more – one man and two women in the same car. They were carried to the place and he was pout in the car. He saw the stoning from the back window of the car.
Asked why he went to the stoning if he disagreed with everything about the Islamic Republic, he claimed that he didn’t go there to watch it, he went to see who was actually doing the stoning and when he saw them doing it he remonstrated them and this was why he was detained. He was beaten, taken to a detention centre and beaten and tortured there. He signed an undertaking to not behave as he had. After he was released, he returned to Tehran seven to 10 days later. He was living with his parents in Arak.
He never had in mind to leave the country else he would have brought documents with him. The problems he had with interviews was because of his poor memory. It was put to him that most of the reference to his poor memory seemed to be him simply saying that he had a poor memory. He disagreed and said that he had medical test reports. It was put to him that this didn’t appear to corroborate his claim but he would be given time post-hearing to provide a submission.
He was told about s 424AA and with respect to the stoning, he had previously claimed that he was detained by the militia and that after he was released he got into a fight with the militia after they continued to follow him and he was stabbed under the arm during this fight, yet today he made no mention of being stabbed while in Arak even though he was asked several times whether anything happened to him in Arak, yet he said that he claimed that he had a scar from being hit under the left arm with a sharp instrument post-demonstration in Tehran. The Tribunal was concerned that he had mixed these stories up and that neither event (stoning/demonstration) had happened and that the scar could be from anything, such as an industrial accident.
He claimed that he had said things backward and forward but he didn’t really remember things as he had been in Australia for ten years. Under s 424 AA it was put to him that he had said today that he had voted for Musavi at the presidential elections (2009) and had been a supporter of his since he was PM. Yet previously he had stated that he had never voted, except for Bani Sadr and that his failure to vote had caused a range of problems for him including in employment.
He had also said in a previous interview that Musavi was worse than the government and they had hated him as PM because of high prices and low wages and that he was a puppet of Rafsanjani. There was an inconsistency in what he told different interviewers/members and this could go to issues of his credibility. The concern was that he wasn’t politically motivated, hadn’t failed to vote in elections and hadn’t taken part in protests, and hence he was never detained, tortured or denied employment. It was also put to him under s 424AA that he had not mentioned anything about attending protests or a stoning in his entry application when he arrived by boat.
He claimed that he had said everything during his interviews but it wasn’t sequential and things like dates/locations had changed because of his forgetfulness and all doctors had confirmed this. It was put to him that the Tribunal’s concern wasn’t too much about dates/locations but in the inconsistencies that gave rise to concerns that he had made these events up. He said that this was what he remembered because of his bad memory.
Under s 424AA it was also put to him that he had previously been asked where he lived in Tehran and he said that his mother-in-law owned the house where they lived and he lived with his wife and her children on the ground floor and his mother-in-law lived on the first floor but at hearing he had said they rented an apartment for the three years with his wife before they came to Australia. He claimed that he didn’t know the exact question and said that they lived in two places – his mother-in-law’s and in a rented house.
Also under s 424AA it was put to him that he had been asked about the relationship with the children from his first wife today and he said that he had good relations with them and always had. Yet previously in an interview he had said that he didn’t get on with his older son and he had been told about the summons by his younger son because he was the only one he had good relations with. He said that he didn’t have bad relations with his son, he was just unhappy that he had left Iran to come to Australia.
He again said that he had a bad memory. It was put to him that if he had a poor memory then it was reasonable to believe that he wouldn’t have written things down and prepared himself for the hearing so that he was able to recall details. Yet he had claimed to have a poor memory but had done no preparation for the hearing in this regard. He claimed that his mental health and memory is worse now that he doesn’t live at home with his wife. He was given a week to provide any additional information, including medical information that he wished to provide.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a separated [age] year-old man, with his wife and two children in Australia. He arrived in Australia by boat in December 2010, applied for a protection obligations assessment on 29 March 2011 which was negative, referred to an Independent Protection Assessment and was found not to be owed protection on 22 February 2012. He applied for a SHEV on 22 June 2017 which was denied on 22 November 2017. He then applied for a review of this decision on 4 December 2017.
He claimed that if he returned to Iran he would be detained, tortured and possibly executed because he had left Iran despite having given an undertaking to report to the court, and because he had converted to Christianity and was critical of Islam.
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 have taken into account some medical documents provided by the applicant both before and at the hearing. He claimed throughout his hearing that he suffered from a poor memory and that this was confirmed by all the doctors that he had visited. I confirmed with him that the medical documentation that he provided to the Tribunal at the hearing represented the total of the relevant medical treatment on which he based this claim.
One report from a psychologist [dated] 18 August 2013 noted that he was dismissed from the military in Iran because of mental health problems (hallucinations and some thought disorder), made an initial assessment that he was suffering from chronic mental health problems and said that he needed to be further assessed to see if he needed psychiatric or mental health treatment. There was no mention of memory loss in this report.
A report dated 26 September 2017 from someone titled ‘Mental Health Practitioner’ noted that he had attended two sessions with the practitioner. The report noted that the applicant had excessive anxiety and stresses due to amongst other things his visa process and undcertainty, he reported that having poor concentration and memories, and the report noted his concentration was poor as well as having impaired immediate and short-term memory. The report said that he needed additional sessions to assist him with coping strategies.
Another report dated 14 June 2018 stated that he had four psychological counselling sessions between 1 May 2018 and 5 June 2018. The report says that he reported having difficulty in remembering things, and that he presented with anxieties that were mainly due to the uncertainties of his future, particularly when separated from his family, and that he was feeling helpless and hopeless waiting for his immigration interview. Another report from 9 April 2019 shows that he had an electroencephalogram (EEG) based on a referral for PTSD symptoms and memory/concentration issues. The report was inconclusive, saying that the findings could be consistent with presenting symptoms however it could also relate to the effects of his pain medicine, and it recommended a medication review.
The GP report dated 3 November 2020 said that he was suffering from chronic mental illness following a childhood head trauma and that he was suffering from significant memory loss and confusion. It also noted the EEG findings that were consistent with the presenting symptoms. I note that it made no mention of the EEG report’s findings that it could also relate to his pain medication. The patient summary from the same practice dated 10 September 2020 also noted that he had significant memory loss.
I note that the applicant was asked and he stated that he was able to attend the hearing medically and there was nothing in his behaviour that indicated that he wasn’t. He was coherent, focused and his responses were generally ordered. I have taken into account the medical evidence that he has provided, particularly that relating to issues surrounding his poor memory. I do note that much of this reference to poor memory relied on self-reporting which relies on the credibility of the patient’s claims. I note for example that his GP states that he had chronic mental illness following a head trauma during his childhood, yet in his protection visa application he claimed that he sustained an injury to his head playing soccer during his military service and that he had had problems with his memory ever since this incident.
I also note that there is no mention of mental health issues that result in a poor memory from his initial protection statement or his ITAO statement. I do note that his initial protection assessment statement does claim that he had difficulty recalling precise dates but this was put down to his unfamiliarity with the Gregorian calendar and his inability to recall time periods he spent en-route to, and during detention in Australia.
I have also taken into account the passage of time between the events that he allegedly experienced and the present time. I also note that there must be stress involved in the protection visa process, particularly given that has passed since he has been in Australia.
And while none of the medical reports have provided any indication of what limits to his recall their diagnosis of poor memory means, given the medical diagnoses and the passage of time that has elapsed since the events that he is trying to recall occurred, I have not placed much weight on inconsistencies in his recollection of dates or times in his account.
Even taking into account the applicant’s diagnosed mental health issues, the degree and number of inconsistencies in his evidence and the tactical nature of his alleged Christian conversion are such that they cannot be accounted for by a poor memory but rather are indicative that the claims have been fabricated. 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.
Religious Conversion
I do not accept that the applicant has genuinely converted to Christianity. The issue of genuine or non-genuine religious belief can be a difficult one to discern because religious identity is a personal issue. In the applicant’s case however, I am satisfied that his lack of any interest in Christianity until after failed protection applications, as well as his lack of knowledge indicates that the applicant’s claim to have genuinely converted to Christianity is contrived.
There is no mention of an interest in Christianity in any of his statements up to and including his protection visa application. Although he claimed at hearing to have attended church in Tehran and prior to his original negative protection visa decision, I do not accept that either is the case. He never mentioned his alleged church attendance in Tehran at his DIBP interview nor in any previous statement. In his protection obligation assessment statement he described himself as a Shi’a Muslim.
He was unable to say what denomination he had been baptised into, nor the name of the church in which he had been baptised. He was asked a very basic question about what occurred at Easter, the holiest celebration in the Christian calendar and he was unable to provide any information regarding it despite allegedly having been baptised in sufficient time to have experienced at least two Easter seasons.
I am not satisfied that poor memory accounts for these inconsistencies. The applicant would have welcomed the applicant simply being able to talk about Jesus’ death or the Resurrection being linked to Easter without having to know what day either occurred. The Tribunal is conscious of not setting some arbitrary and difficult bar to prove one’s degree of Christianity such as a quiz about the New or Old Testament. It is however reasonable to believe that someone who has allegedly attended church in Tehran, converted to Christianity and attended church for two Easter seasons would at least be able to talk about its significance even if only in general terms.
I have taken into account two letters he provided post-hearing in support of his Christian conversion however I lend them little weight. Neither of the authors were asked to, or attended the hearing. Both letters were also written after the hearing when concerns regarding his claims had been put to the applicant.
The first letter was from the leader of a Persian bible study group at [a] church at [Suburb 4]. He mentioned that the applicant told him that he had secretly attended church a few times in Iran, and that the applicant had attended church in [Suburb 4] a few times in 2015 or 2016 but that he stopped and began attending a church in Carlingford and learnt bible there. I note that the author of the letter also stated the applicant had memory difficulties during their meetings. I have already addressed the applicant’s claim to have a poor memory and, given the latter’s author has no medical qualifications I do not give this observation much weight in explaining the inconsistencies/implausibilities in his claims.
I also note that although the author claimed the applicant attended his church in 2015 or 2016 the applicant never mentioned this in his seven-page protection visa application statement written in June 2017 or during his DIBP interview. I do not accept that this was due to any memory issues given that the applicant mentioned at the start of the statement that because of ‘significant problems with my memory’ he was making a written statement to elaborate on, or correct details from previous records.
I have also taken into account a letter and baptismal certificate provided by [a pastor] from [a second] church but also lend it little weight. According to the letter [the pastor] met the applicant [in] August 2018 and baptised him [in] August 2018. Not only does this rather rapid willingness to baptise someone not indicate any deep understanding of the faith on the part of the person being baptised, the fact that it occurred after his protection visa refusal raises serious questions in the Tribunal’s mind as to his motivations for both the baptism and the subsequent attendance at Sunday services and bible classes that the letter’s author claims the applicant attended.

Given these issues, I find that the actions regarding this church attendance, attendance at religious education and activities, and baptism, have been done deliberately and with the sole purpose of improving his refugee claim. As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
Because I have found that the applicant is not a genuine Christian convert, it follows that he has not told his relatives or friends in Iran that he has converted or that he has criticised Islam or spoken of Jesus Christ during phone calls or in messages. I also do not accept that there was information about his conversion on social media. This claim relies entirely on his oral evidence which I have found lacks credibility.
Political Activity
I do not accept that the applicant was politically active in Iran, that he was ever arrested, detained, tortured or charged with an offence. This relies on his oral evidence and there were too many inconsistencies displayed by him for me to place much weight on such evidence. To begin with, his attitude towards Moussavi was inconsistently relayed. In his entry interview after his arrival by boat in December 2010 he made no mention of Moussavi or being involved in political protests. And while the short entry interview is of limited value in understanding claims, the complete absence of such information is unusual.
In his protection assessment obligation statement there was no mention of supporting Moussavi, simply a claim that he had joined in street demonstrations because he was frustrated and angry with the government. He also claimed in this statement that he did not support voting because he was opposed to the system of government in Iran, and that he didn’t vote in the 2009 election.
In his IPAO statement he claimed that he never once voted for the presidential campaign, but that the people wanted to vote for Moussavi even though Moussavi was ‘as bad as the others’. In his protection visa application statement he again said that he had not voted and that he didn’t care so much about Moussavi but was against the regime.
During the hearing he claimed that he was a long-term Moussavi supporter and had been since Moussavi had been prime minister (PM) – Moussavi was PM from 1981-89, and that he was demonstrating to show his support for Moussavi against Khamane’i. Although he claimed that he could not remember what election this was, given Moussavi has only run in the 2009 presidential election there is only one that his actions could relate to. He also stated that he voted for Moussavi in this election.
Yet in a previous recorded interview he had claimed that he hated Moussavi as PM because of high prices and low wages and that he was worse than the government. I also note that he changed tack during the hearing when, after saying that he was a Moussavi supporter since Moussavi had been PM and was arrested because of this, he was asked if he was happy Moussavi was running for president. He then said that he forgot that he had said previously that Moussavi wasn’t a good man but was better than the others.
I do not accept that his changing stories about support for, or dislike of Moussavi or whether or not he had voted were down to forgetfulness. He made no claim to be forgetful about whether or not he had voted for Moussavi at hearing, only that he was forgetful about what year it was that he voted for him. These elements (support or otherwise for Moussavi/whether or not he voted) were fundamental to his claim and I have not accepted that the medical evidence he has provided is sufficient to explain such significant inconsistencies in his claim.
Because I do not accept that he has taken part in demonstrations it follows that he was never detained during them, or tortured or stabbed during those detentions. Nor did he ever have to sign an undertaking not to protest in the future, put forward a bond to be released, ever receive a court summons or people ever visited his house. He provided no copy of any bond receipt or court summons for the Tribunal to examine despite him having years to obtain a copy.
I do not accept that this was because he never had a mind to leave the country when they arrived two-three months before he left. This is inconsistent with what he claimed in his 2017 statement that his being told of the summons meant he knew there were charges against him and that he had to leave the country before he was blacklisted.
Because I do not accept that the applicant has never voted at all, or never voted since the time on Bani Sadr (1980), it follows that he was not discriminated against in terms of seeking employment because of having failed to vote. I note for example (folio 183) that the applicant did a carpentry apprenticeship from 1976-1983 and then after his military service was employed in various carpentry jobs in Iran from 1984 until he left in 2010 which would indicate that he was employed in accordance with his qualifications.
Attendance at Stoning

100. I do not accept that the applicant ever attended a stoning at Arak, got into a fight with militia, or was detained or stabbed. Again this relies on his oral evidence entirely, which I have found to lack credibility. There are also other aspects of his total claims that tell against this being a truthful claim. To begin with there was no mention of this incident in his initial entry interview on arrival in Australia and, while too much weight should not be given to its absence it is nevertheless strange that such an important element of his claim was missing entirely from his initial interview.
101. He also claimed in his IPAO statement that he was stabbed by the militia at a stoning in Arak after being involved in a fight with them where they fought back No mention was made of the alleged incident in his ITAO statement. In his protection visa statement he claimed that he was in a fight at the stoning with the Basij, and a few days later they found him again and stabbed him under his arm after asking him some questions.
102. During his hearing he claimed that he had a scar on the side of his chest from where the Sepah had tortured him after he was arrested in a pro-Moussavi protest in Tehran but never mentioned that he had been stabbed in Arak during the stoning. I do not accept that this inconsistency was again due to his poor memory.
Other Issues
103. I do not accept that the applicant experienced employment discrimination because he was from Arak and would not be able to get a job, given the employment record noted at paragraph 99 above. He mentioned this in his IPA statement but not subsequent to that. The Tribunal can find no independent country information that would support such a claim, nor has the applicant provided any.
104. I also do not accept that the applicant was working with some Austrian men with whom he became close and that he feared being of interest to authorities because of this. He has not worked in Arak for 20 years so it makes no sense that the Iranian authorities would have any interest in a work-based contact with foreigners 20 years ago. The claim also relies solely on the applicant’s oral evidence which I have found lacks credibility.
105. I also do not accept that the applicant was sending political and anti-religious postings via [social media]. He provided no evidence in support of his claim such as screen shots or what was on his own phone. It also appears inconsistent that the applicant claimed at one stage that he couldn’t learn how to use a mobile phone yet he knew how to send and receive [social media] messages.
106. For the same reason (his lack of credibility) I do not accept that he came to authorities’ attention and was stopped by police and had his car searched for being clean-shaven, tidy and not demonstrating against the US. These claims do not appear to have been made prior to the protection visa application, and no independent country information was provided in support of this claim, nor is any available to the Tribunal that would allow me to give weight to such a claim.
107. Although he did not make such a claim I will address the issue of his mental health for completeness’ sake. No evidence was presented that he would be unable to obtain relevant treatment in Iran if he were to return. Indeed, the ‘mental health practitioner’ claimed that he had received treatment in Iran and got better on the medications that were given to him. The stressors related to his visa uncertainty would be lifted, he has six siblings and two sons in Iran who he has not seen for a long time so he has family support available, and he has carpentry qualifications that he used until the time he left Iran.
Failed Asylum Seeker
108. I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily.[1]
[1] Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information discussed at hearing indicates that unless an individual was the subject of adverse official attention prior to departing Iran (which the applicant wasn’t), returnees are unlikely to attract attention form the authorities.[2]
[2] DFAT Country Information Report – Iran, 14 April 2020., p 70.
110. Whilst I accept that there was a data breach of asylum seekers’ personal details on the Department website in February 2014 and that this included that of the applicant, I do not accept that there is a real chance of serious harm resulting from it. Even if the Iranian authorities did become aware of it, all they would know is that the applicant had applied for asylum and, given he had no profile prior to leaving, he would simply considered another failed asylum seeker.
111. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
112. Although I have disregarded the applicant’s church attendance and baptism for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). I do not accept that the applicant has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant will be imputed with being a Christian and/or apostate through his church attendance, religious education and activities or baptism because I am not satisfied that his presence in Christian religious settings has been posted or identified in social media settings.
113. I also do not accept that the applicant ever attended a stoning in Arak, got into a fight with the Basij and was stabbed, that he ever attended any demonstration and or was arrested, detained and tortured, charged or summonsed to court, refused to vote in elections, could not find work because he was from Arak, or was of security interest because he spoke to Austrian men 20 years ago or because he was clean shaven, tidy and didn’t go to anti-US protests, or would be prosecuted as a voluntary returnee or for seeking asylum. Because of these reasons 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.
114. I have taken into account his claims regarding his mental health condition but am satisfied that appropriate treatment is available for him in Iran. In arriving at this conclusion I have given weight to the ‘mental health practitioner’s’ letter from 2017 that stated that the applicant received psychiatric management in Iran, was prescribed medication, took them and was stable. There is no reason to think that the same treatment would not be available to him on return to Iran, nor did he claim that it wasn’t.
115. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
116. 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).
117. 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).
118. 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
119. The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2782

13 May 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction