1802049 (Refugee)

Case [2023] AATA 1787

1802049 (Refugee) [2023] AATA 1787 (15 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802049

COUNTRY OF REFERENCE:                   Islamic Republic of Iran

MEMBER:Jane Marquard

DATE:15 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 February 2023 at 9:13am

CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – religion ­– Shi’a Muslim – imputed political opinion – anti-government views – returnee asylum seeker – credibility issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 46A, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
AZK15 v MIBP [2015] FCCA 2303
BNZ18 v MICMSMA [2020] FCCA 1614
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
EFP19 v Minister for ICMSMA (2021) FCCA 1508
Fox v Percy (2003) 214 CLR 118
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259,
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZIPL v MIAC [2007] FMCA 643
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is a review of a decision of the Department of Home Affairs (Department) dated 17 January 2018 to refuse to grant the applicant a Temporary Protection (XD 785) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    BACKGROUND TO THIS REVIEW

  2. The applicant is a [age]-year-old man who lived in [Ahwaz], Khoozestan, Islamic Republic of Iran (Iran) until he came to Australia in 2011. His family continues to reside in Iran, with the exception of one brother, a partner and a young child in Australia.

  3. The applicant first arrived in Australia by boat in November 2011 as a category of entrants labelled ‘Irregular Maritime Arrivals’ (IMAs) by the Department of Home Affairs (Department). On [date] November 2011 he…

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Details
AGLC
1802049 (Refugee) [2023] AATA 1787
Case
[2023] AATA 1787
Decision Date

CaseChat Overview and Summary

The applicant, a man from Iran, sought review of a decision by the Department of Home Affairs to refuse him a Temporary Protection visa. The applicant claimed he was a stateless Faili Kurd and feared persecution on return to Iran due to his ethnicity, undocumented status, and imputed political opinion. He had previously arrived in Australia as an irregular maritime arrival and, after a period of being unlawful, was granted a visa that eventually ceased, leading to his current application.

The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or whether there were substantial grounds for believing that his removal would result in a real risk of significant harm. This involved considering the applicant's claims of being a stateless Faili Kurd and facing persecution due to his lack of documentation and imputed political views.

The Tribunal's reasoning focused on the applicant's claims of statelessness and the basis for his fear of persecution. The applicant asserted he was a Faili Kurd, stateless, and had experienced persecution in Iran, including being detained and subjected to sexual assault, which he attributed to his lack of documentation and potential political involvement. He also identified as a Shi'a Muslim. The delegate had been unconvinced of his statelessness, finding him to be an Iranian citizen, and was not satisfied he met the protection criteria. The Tribunal was tasked with re-evaluating this evidence and determining if the applicant's claims established a well-founded fear of persecution or a real risk of significant harm.

The decision under review was remitted.

Orders

Orders of the court

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Background

Background to the litigation

This is a review of a decision of the Department of Home Affairs (Department) dated 17 January 2018 to refuse to grant the applicant a Temporary Protection (XD 785) visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THIS REVIEW The applicant is a [age]-year-old man who lived in [Ahwaz], Khoozestan, Islamic Republic of Iran (Iran) until he came to Australia in 2011. His family continues to reside in Iran, with the exception of one brother, a partner and a young child in Australia. The applicant first arrived in Australia by boat in November 2011 as a category of entrants labelled ‘Irregular Maritime Arrivals’ (IMAs) by the Department of Home Affairs (Department). On [date] November 2011 he applied for protection in Australia by way of a process called a Protection Obligation Determination (POD). A biodata interview was conducted by the Department on entry, and on 13 January 2012 the Department conducted an IMA interview (Entry Interview). The applicant claimed that he was a stateless Faili Kurd who would face persecution on return on the basis of his ethnicity and undocumented status. On 2 February 2012 he was assessed by the reviewer in his POD as being a stateless person whose country of former habitual residence was Iran. He was assessed as meeting the criteria for a protection visa but was subject to a bar to applying for a protection visa. He then commenced a ministerial intervention application to have the bar against applying for a protection visa lifted, but on 11 April 2012 this was unsuccessful. On 21 July 2014 he was granted a Humanitarian Stay (Temporary) (UJ 449) visa and a bridging visa. These ceased on 23 January 2015 and the applicant was unlawful until 9 June 2015 when the s 46A bar against applying for a protection visa was lifted. The applicant applied for this Temporary Protection (XD 785) visa under s 65 of the Act on 25 November 2015. A Temporary Protection (XD 785) visa allows applicants who meet the protection criteria to remain in Australia temporarily for three years. The applicant claimed protection on the basis of being a stateless Faili Kurd, a returnee asylum seeker and because of his political opinion. A delegate of the Department refused to grant the visa on 17 January 2018. The delegate was not satisfied that the applicant was stateless and found that he was a citizen of Iran. The delegate was also not satisfied that the applicant met the protection criteria as a Faili Kurd or returnee asylum seeker, or that he had a well-founded fear of persecution on the basis of political opinion. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out later in the decision and relevant provisions can be found in Attachment A, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.EVIDENCE CONSIDERED IN THIS REVIEW

Evidence

Evidence Before The Court

The evidence and material before the Tribunal is referred to where relevant in the findings. Not all the evidence is referred to in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[1][1] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.Summary of evidence in Department files The applicant submitted an application form and supporting Statutory Declaration to the Department in support of his application. He was also interviewed by a delegate of the Department. His Departmental records contain details of earlier applications. A summary of this evidence follows. The applicant is a Shi’a Muslim. He said that his ethnicity is Faili Kurdish. He speaks Kurdish, Farsi and Arabic. His father died in 2004. His mother resides in Iran, as do his [brothers] and his [sister]. He has one [brother] who is in Australia. He said that he attended primary school in Ahwaz, but he did not complete it. From 1994 to 2011 he worked as a [Occupation 1] at [Employer 1] in [Khoramshahr].Biodata interview with the Department after entering Australia, [November] 2011 The applicant said that he was seeking protection because:I didn’t have any documents and therefore had no human rights. I was stateless and had no documents either in Iran or Iraq. In Iran they said I was Iraqi and in Iraq they said I was Irani. I was also detained by the Basij in Iran and was persecuted.Protection Obligations Determination (POD) application, 12 January 2012 The applicant stated in his application for the POD that he and his family were deprived of many basic human rights in Iran. This included the inability to get medical treatment, work legally, open a bank account, travel freely, get health or work insurance, own a mobile phone or own property. He said that he had to avoid authorities on the streets as he had no documents. He also said that he was humiliated and beaten a few times by Arabs and Iranians. He said that eight years prior to the POD, he was returning home after playing soccer in an area called [Village 1]. A few people surrounded him and covered his face. They forced him to the ground, and he felt something sharp against his thigh. He said that he was terrified. He heard his attackers, a number of men, speaking Arabic and Farsi and he was then anally raped. He spoke of being devastated and ashamed and having many nightmares afterwards. He said that he was embarrassed and could not report the incident to police, and constantly felt in fear. He said that he became depressed and attempted to commit suicide. He has a scar on his side which is still visible. His anal cavity has also been damaged.Entry Interview, 13 January 2012 The applicant confirmed that he was Kurdish Faili and that although he had lived in Iran, he was stateless. He said that neither Iran nor Iraq were his countries. He said that if he returned to Iran, the authorities would think that he was involved in politics because he has no identity and had travelled to Australia. He said that the authorities are suspicious of people who leave the country.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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