1802049 (Refugee)

[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 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.

4. 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.

5. 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.

6. 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.

7. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

8. 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

9. The Tribunal has considered evidence and submissions made to the Department, Departmental records pertaining to this applicant, evidence to this Tribunal and independent sources about Iran.

10. 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

11. 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.

12. 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.

13. 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

14. 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

15. 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.

16. 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

17. 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.

18. When asked why he left his country of nationality, he said:

    First of all because I do not have any identity and as such no legal rights to anything in Iran. No health insurance. No school. We could not go to hospitals. I could not open a bank account. Could not have a bank account. I could not purchase a house or car. Could not get married legally. Because I am Kurdish Faili in Iran they say we are Iraqis and in Iraqi we are called Iranians. There is no identity. Most thing that happened to me was I was raped in 2005. It was night time I was returning home after I had played soccer. Four men stopped me they covered their faces and back I was only [age] years old. They knew I was Kurdish Iraqi.

    They had a knife. They forced me and raped me. Three of them were Arabs and one was Iranian. I gathered this from the way they were speaking, if you do not believe this you can get me tested. There is proof of the rape. I wanted to commit suicide as these men spread the story of my rape. I could not leave the country earlier because I had financial problems. The reasons are because I have no identity and the rape incident. I could not complain as I did not know their names and I could not do anything.

19. The applicant said that he began to make arrangements to travel to Australia in August/September 2011 through a smuggler in [Country 1]. His brother handled the arrangements and paid 8 to 9 million tomans. He said that he was issued with a genuine Iraqi passport in his name, which he travelled to Iraq to obtain.

20. He travelled to Australia with his [brother], his sister-in-law, nephew and aunt.

    Identity assessment report, 6 February 2014

21. An identity assessment was conducted by an investigator from the Department on 6 February 2014. The applicant claimed that none of his family had Iranian nationality.  He said that his parents were deported by Saddam Hussein and lived in Tehran, then Ahwaz, where more Arabic speakers lived.  His father worked as a [Occupation 2] for non-government agencies and died when the applicant was about [age] years old. He said that all of his family were issued with green cards upon arrival in Iran and were registered with the UNHCR. He said that these cards contained a photograph, name, date of birth and signature. There were pink and yellow stamps on the cards.  The cards were valid for 12 months. Later these cards were exchanged for white cards.  They went to renew the cards in around 2010 or 2011 but were told they could not as they were expected to return to Iraq. He surrendered his white card when he travelled to Australia. He said that he paid for a driver’s licence. He said that he had seven years of schooling, but only reached year four. He said that he worked as a trainee [occupation]. The investigator concluded:

    Based upon the client’s own admission and the documentary and biometric evidence available to me, I am satisfied that (the applicant) is a former resident of Ahwaz, Iran, with sufficient fluency in the Kurdish (Faili) language to be assessed as an ethnic Faili Kurd. However, there is no documentary evidence to support his claims to be (name of applicant provided), a person of stateless nationality and therefore his identity claims are not supported. Further, the frequent contradictory nature of the information he provided at this interview in my view undermined his identity claims, to the extent where I believe it possible that he was fabricating and/or withholding information about those claims. This, together with his comment that “maybe” he will return to Iran if he is refused permission to stay in Australia, indicates that (the applicant) may in fact be a documented Iranian national.

    Statutory Declaration attached to protection visa application, 20 November 2015

22. The applicant made the following claims:

    ·His whole family are stateless.

    ·He was discriminated against as a stateless Faili Kurd.

    ·He does not have official documents or rights such as the ability to own a house, travel, own a car, get a sim card, obtain employment or study.

    ·He was raped in [Village 1], where Arabs live. The perpetrators had a knife. He could not report the incident to the police as they would not protect Faili Kurds.

    ·His wages as a [Occupation 1] were very low.

    ·He was very good at soccer and was promoted to the [named] team, however he was sacked because he was stateless.

    ·Police would take money from Faili Kurds as they were undocumented.

    ·His family lives in a miserable situation.

    Interview with the Department, 30 November 2017

23. The applicant said, in contrast to his evidence in the Entry Interview, that he paid for a fraudulent Iraqi passport in order to leave the country but that he did not travel to Iraq to get it. He said that he used it once then discarded it.

24. He said that his father was born in Baghdad, Iraq and Sadam Hussein sent them out of the country. He once went back to Iraq for a pilgrimage with his father when he was young. For a period of time the border gates were open, and people passed through. His father had documents, which expired. His mother was born in Ilam in Iran. She had no legal status. His parents were married in Iraq. His father’s relatives were killed by Saddam.

25. He said that he was unsure if he was given a record of birth or birth certificate at the hospital where he was born. He was only allowed to attend school until fourth grade. He agreed that some people could attend further if they attended private school.

26. He lived in a [rental house] with his mother and brothers. His siblings are all self-employed.

27. He said that in Iran they were classified and ‘looked at’ as Iraqis. He said that neither Iran nor Iraq accepted the Faili Kurdish people.

28. He said that he speaks Kurdish with his family. He said that in Iran he spent most of his time with Farsi people at school and this is why he chose to do the Department interview with a Farsi interpreter.

29. He said that his family had white cards but he does not know if they were original or fake. He said when travelling around he was not picked on, because he spoke Farsi. He said that he was picked on in the car but had a fake driver’s licence. He said it was common to get these through networks. He said that he did not know what an Amayesh card was.

30. He said that if he was ‘having fun outside’ and the police picked them up, because they did not have identification, they had to bribe the police.

31. He said that in 2004 he was attacked by criminals with a knife on his way back from a soccer match and assaulted. He has scars from the incident. He was young and too afraid to tell his family or the police.

32. His father was hospitalised in Iran after he had a heart attack.

    Medical reports

33. The applicant provided a copy of a report from [Dr A], psychologist, dated 11 November 2017. The report stated that the applicant had been referred to him for depression and anxiety due to a work incident. The applicant was seen for eight sessions. He was assessed on the Depression, Anxiety and Stress Scale test (DAS 21) as having a high level of depression, anxiety and stress. He told the psychologist that he was living with his brother. He said that he had been happy and healthy prior to the workplace incident. He described no significant event during his development years. He told the psychologist that his family was deported from Iraq to Iran.

34. Medical reports were also provided in related to his serious [Body Part 1] injury.

    Evidence to the Tribunal

35. The applicant appeared before the Tribunal on 10 October 2022 to give evidence in support of his application for review, after requesting and being granted a postponement of the hearing from 20 September 2022. The applicant’s representative was present by telephone. An interpreter assisted the Tribunal and the applicant said that he understood him well. The applicant’s support person (his partner) was also present at the hearing. Evidence provided at this hearing is referred to in the findings below. In summary the applicant repeated prior claims that he was a stateless Faili Kurd who would be persecuted if he returned to Iran for reasons of his undocumented status, his ethnicity, his political opinion and as a returnee asylum seeker.

36. On 10 January 2023 the Tribunal wrote to the applicant through his representative to notify him that there was new information before the Tribunal from a related case which suggested that the applicant was an Iranian national rather than being stateless. He was invited to confirm whether he still maintained that he was stateless or instead wished to notify the Tribunal that he was an Iranian national.

37. On 24 January 2023 the Tribunal was notified that the applicant’s representative no longer acted for him, and a new representative, Alison Ryan of Refugee Advice and Casework Service, was appointed.

38. On 25 January 2023 the applicant provided a Statutory Declaration to the Tribunal. He said that although he had previously claimed that he was a stateless Faili Kurd, this information was incorrect, and in fact he was a citizen of Iran. He said that his father was born in Baghdad, Iraq but his mother was born in Iran.

    FINDINGS AND REASONS OF THIS TRIBUNAL

    Summary of relevant law

39. The applicant has applied for a Temporary Protection (XD 785) visa which allows the applicant to stay in Australia for three years if he meets the protection criteria in the legislation.

40. The Tribunal acceded to the 1951 Convention relating to Status of Refugees[2] in 1954 and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]

    [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

    [3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

    [4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

    [5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

41. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

1. An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act. 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).

   Refugee criterion

2. Section 36(2)(a) of the Act 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.

3. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality or country of former habitual residence:  s 5H(1)(a) of the Act.

4. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

5. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

6. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ).

7. 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 of the Act, which are extracted in Attachment A to this decision.

   Complementary protection criterion

8. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

9. 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) of the Act, which are extracted in Attachment A to this decision.

   The applicant must satisfy the statutory elements

10. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

    Key issues for determination in this matter

11. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues in this case are:

    ·Whether the applicant is a Faili Kurd.

    ·Whether the applicant is stateless as claimed.

    ·Whether the applicant has a well-founded fear of persecution in Iran.

    ·Whether there is a real risk of significant harm in Iran.

12. These issues and other threshold issues are discussed below.

    Assessing credibility

13. Asylum cases present particular complexities in regard to fact-finding and assessment of credibility. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

14. Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may be impacted by cultural or psychological issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[6]

    [6] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >

    This case has had a long history. The applicant has been in Australia since 2011 so it is somewhat understandable if he has forgotten or confused details about incidents which took place in Iran prior to this time.

15. For all these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[7] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[8] An Australian study found that tribunal members may at times rely on assumptions which can be inconsistent with psychological literature.[9]

    [7] Fox v Percy (2003) 214 CLR 118.

    [8] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511<  Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

The Tribunal is conscious and mindful that decision-makers should not rely unreasonably on assumptions and that there may be factors that consciously or otherwise influence decisions.[10] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[11] in ensuring that the process of credibility assessment is reflective and fair. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

[10] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.

[11] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[12] which reinforce that the Tribunal should consider the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[13]. A similar approach is taken in the Department’s Refugee Law Guidelines[14] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook)[15], which provides useful guidance for this Tribunal.

[12] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816 at [25].

[14] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).

[15] UNHCR, re-issued February 2019 at [203-204].

However, the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). In this case, there are serious questions about the applicant’s overall credibility given that he fabricated evidence to the Tribunal about being stateless in 2011 and maintained this untruth until 2023 even giving evidence of this at a recent Tribunal hearing. The Tribunal notes further that he did not correct this evidence of his own accord. It was only when the Tribunal put to him that it had information which may indicate that he was an Iranian citizen that he then changed his evidence to say that he was an Iranian citizen. The Tribunal notes that by way of explanation of his incorrect evidence, the applicant said that right from when he was in [Country 2], on the way to Australia, and then again when he was in detention on Christmas Island, people told him to say that he was stateless, or he would be returned to Iran. He said that he was scared and confused. Later lawyers advised him not to change his evidence. Although not a justification for provision of the correct information, these factors are somewhat mitigating. It is understandable that as a young man who had been sexually assaulted in Iran, he felt desperate not to return there, and succumbed to the pressure of those around him to say that he was stateless in order that he not be returned.

Matters on which the Tribunal is satisfied

The Tribunal is satisfied on the basis of personal particulars provided that the applicant is a Shi’a Muslim, that he is from Ahwaz, that many of his family members remain in Iran, and that after primary school he worked as a [Occupation 1]. He confirmed at the Tribunal hearing that his grandparents have passed away and his father died in 2004 but that his mother resides in Iran, as do his three brothers and his sister. He has one brother in Australia. He has extended family in Iran, including uncles and aunts, but they do not have a good relationship and he does not have much contact with them due to ‘poverty and electricity’, and his mother does not see her brothers and sisters who live in a different town because of ‘family arguments’. He also has cousins in Iran and contacts them occasionally by telephone.

There is no reason to doubt these particulars provided, and he has been consistent about this information in his accounts to the Department and Tribunal.

The Tribunal is satisfied that the applicant has a partner in Australia and two daughters in [Australia]. His partner supported him at the Tribunal hearing.

The Tribunal is satisfied that the applicant was brutally sexually assaulted by criminals in Iran in 2004. He has been consistent about this evidence since he arrived in Australia. His described reaction of fear, embarrassment and shame is a common response for sexual assault victims. He has a scar on his side which is still visible and he also spoke of his anal cavity being damaged. The Tribunal did question him about why he did not mention the sexual assault incident to the psychologist in 2017. In a report from [Dr A], dated 11 November 2017, the applicant ‘described no significant event during his development years’. He told the Tribunal that he thought he was seeing the psychologist in relation to his mental state following [his Body Part 1] injury, and that ‘he was not meant to tell these types of things’. The Tribunal accepts that this is a reasonable explanation as to why he did not tell the psychologist about the incident.

The Tribunal is satisfied that the applicant suffers anxiety and depression and has experienced significant stress. After seeing the applicant for eight sessions, the psychologist, in a report dated 11 November 2017, assessed the applicant on the Depression, Anxiety and Stress Scale test (DAS 21), a commonly used measure of mental health, as having a high level of depression, anxiety and stress. Medical reports were also provided in relation to his serious [Body Part 1] injury, which caused [major damage to his Body Part 1]. Although no updated medical reports have been provided and he said that he is only seeing a doctor every three to six months for his [Body Part 1], the Tribunal is satisfied that he has these medical conditions based on the earlier reports, given the trauma of his sexual assault and due to him leaving his country and family. The Tribunal is satisfied that it is reasonable, as claimed by him, that 11 years of waiting to find out the outcome of his visa applications is extremely stressful and that since he has lost [the use of Body Part 1], he has become more ‘irritable and edgy’. He pointed out that he was [age] years old when he came to Australia and is now [age] and ‘still in limbo’. The Tribunal also accepts his evidence that he is worried about his children as they have no rights given that his partner is a student and is not an Australian citizen.

Is the applicant a Faili Kurd?

According to the Department of Foreign Affairs and Trade (DFAT), ‘the Faili (also spelled Feyli, and commonly known as Iraqi) Kurds are a sub-group of the larger Kurdish population. They originate from the Zagros Mountains, which straddle the Iran-Iraq border, and many have family on either side of the border’.[16] They typically reside near ‘to the Iraqi border, including in Khuzestan, Lorestan, Kermanshah and Ilam provinces, or in major cities. They are distinguishable from other Iranian Kurds by their religion (most Faili Kurds are Shi’a), their location and their distinctive dialect’.[17]  DFAT notes that ‘accurate population estimates for the three groups or for the overall number of Faili Kurds in Iran are not available. A local Kurdish source told DFAT that the number of Faili Kurds in Iran is not significant as a proportion of Iran’s population.’[18]

[16] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

[17] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

[18] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

On 6 February 2014 an identity assessor for the Department was satisfied that the applicant had sufficient fluency in the Kurdish Faili language to be assessed as an ethnic Faili Kurd. Although he did not use a Faili Kurd interpreter at the Tribunal hearing, he provided a reasonable explanation for this. He said that his first language at home was Kurdish, then Arabic. He did not use a Kurdish interpreter because when he was at Christmas Island he asked for a Faili Kurd interpreter and ‘they always brought other Kurdish interpreters’, and he could not understand them.

The Tribunal is satisfied that the applicant is a Faili Kurd as he can speak the language and because of his name. Faili Kurds speak a distinct dialect of Kurdish, which is a sub-dialect of Luri.[19] Furthermore, the majority of Kurds are generally Sunni Muslims adhering to the Shafi’i school of Islam[20], while Faili Kurds are Shi’a Muslims. The applicant’s religion is Shi’a Muslim.

[19] Minority Rights International, ‘Faili Kurds’, < Minority Rights International, ‘Faili Kurds’, <>

The Tribunal is satisfied for these reasons that the applicant is a Faili Kurd.

Is the applicant a national of Iran or Iraq or is he stateless?

For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’, or if they do not have a nationality, outside the country of ‘former habitual residence’. Section 5J(1) refers to this country as a ‘receiving country’.

For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country, or a country of former habitual residence.

The Tribunal must therefore assess whether the applicant was a national of Iran or Iraq, or stateless;[21] in the latter case he needs to be assessed against his country of former habitual residence. Previous decision-makers have had different views on this issue as prior to this Tribunal review the evidence was not clear-cut.

[21] See for example, SZIPL v MIAC [2007] FMCA 643.

For the purpose of the definition of ‘receiving country’ under s 5(1) of the Act, a finding of nationality must be determined solely by reference to the laws of the country.[22] In making a positive finding that an applicant holds citizenship of a certain country, the decision-maker will need to consider whether the applicant meets the criteria for citizenship under the law and how the citizenship was acquired.[23]

[22] See for example BNZ18 v MICMSMA [2020] FCCA 1614 at [66].

[23] BNZ18 v MICMSMA [2020] FCCA 1614 at [66].

The applicant claimed, from entry to Australia in 2011 until January 2023, that he was born and raised in Iran as a stateless person and never acquired Irani or Iraqi citizenship. This information accorded with country sources which suggest that the number of Faili Kurds who have been granted citizenship is low[24], with the majority likely to be registered refugees.[25] . In November 2011, after first arriving in Australia, he said that ‘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’. In the identity assessment conducted by an investigator from the Department on 6 February 2014, the applicant said that his parents were deported by Saddam Hussein and lived in Tehran, then Ahwaz, where more Arabic speakers lived. The applicant gave evidence to the Tribunal that his grandparents and parents were Iraqi citizens. He stated that his mother was born in Baghdad and now lives in Elan and her parents, and all her family, were from Baghdad as well ‘as far as he knows’. He said that they had no relatives in Iran. He said that he did not know when his mother’s and father’s brothers and sisters came to Iran. He said that his father was also born in Baghdad and all his family were from there as well. He told the Tribunal that he does not know when his mother and father came to Iran, but he knows Saddam expelled them at a particular time. He heard that Saddam ‘took their houses and everything’ and they came to Iran ‘with nothing’. He said that this is an ongoing problem for them as they are refugees in Iran.

[24] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

[25] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report Faili Kurds in Iraq and Iran’, 3 December 2014.

1. The delegate of the Department, in finding that the applicant’s claims were not credible, directed attention to the inconsistency in the applicant’s evidence about what cards he and his family held. The applicant told the Department that his family had white cards, but he did not know if they were original or fake.  In his Departmental identity assessment interview in 2014, he said that all of his family were issued with green cards and were registered by the UNHCR in Ahwaz. He said that later they exchanged these green cards for white cards. He could recall that they had photographs, names, dates of birth and pink and yellow stamps. He said that they were valid for about 12 months, but in about 2010 or 2011 they were told they could not renew them and should return to Iraq. He said that he surrendered his white card when he travelled to Australia.

2. In contrast, he told the Tribunal that his family were registered but he had not seen the cards as his parents had them. Asked what these cards were called, he said he hasn’t seen them and hasn’t used them. Asked if he had one, he said that he did not. He does not know when they were taken but he never had a card. He said that if he had one, his parents would have carried his card on his behalf.  When asked about the inconsistency with his earlier evidence, the applicant responded that his life had been complicated and he had ‘been through so much which makes it difficult to remember’ although he ‘may have remembered when I said that earlier’. He said that he had seen a psychologist about the problems with his memory. He also said he did not know the difference between the green or white cards or the Amayesh cards (he had also earlier told the Department that he did not know what an Amayesh card was). The Tribunal asked him why he would not know what an Amayesh card is as a December 2010 DFAT report contained information about registered refugees being issued with them. The applicant then said that as far as he could recall his family had green cards, which they had to give up to the government. He said that they may have replaced them with white cards, but his parents took charge of this, and he cannot recall the differences between the cards. It was put to the applicant that registered Iraqi refugees in Iran have received regularly updated ‘Amayesh’ cards, enabling a permit to reside until they self-deport, access to basic services (including schooling, medical insurance, rental properties and the ability to open bank accounts) ‘and the ability to obtain work permits.’[26] The applicant responded that his family could not use a bank, and they could only study to Grade 5 level, and there were many limitations in access to services. The evidence about his parents taking charge of the cards was consistent with earlier evidence. When questioned about the validity of a ‘white card’ at the Department hearing, the applicant stated he could not recall anything about renewing as these things ‘were done by his parents’. He later added that the ‘white card’ did not require renewing in Iran. However there is no doubt that his evidence about the cards generally was confused and contradictory. This confusion is now understandable given the applicant’s new evidence on 25 January 2023 that in fact he is an Iranian citizen.

   [26]US Department of State, 'Iran 2016 Human Rights Report’, 3 March 2017, p 25; DIBP Tehran,

3. Despite maintaining that he was a stateless Faili Kurd in numerous hearings and submissions from 2011 to 2023, on 25 January 2023, through his new representative the applicant said that the information he had previously provided about being a stateless person, was incorrect, and he is an Iranian citizen.

4. According to the United Nations High Commissioner for Refugees (UNHCR), ‘possession of a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise’.[27] Until January 2023 the applicant claimed that he travelled to Australia on an Iraqi passport, which is prima facie evidence that he is a citizen of Iraq[28]. He told the Department and this Tribunal at hearing that the Iraqi passport was issued fraudulently, obtained with the help of a smuggler arranged by his brother in 2011. In his Entry Interview he claimed the smuggler took the passport off him in [Country 1].

   [27] UNHCR, < UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>.

   [28] See also Department of Home Affairs, PAM3: Refugee Law Guidelines, section 5.4; AZK15 v MIBP [2015] FCCA 2303.

5. Even prior to being informed that the applicant is an Iranian citizen, the Tribunal had some concerns about whether the evidence about the fraudulent Iraqi passport was credible, given that the applicant’s evidence about obtaining the passport was inconsistent in various accounts to officials in Australia. In his Entry Interview he said that he travelled to Iraq to collect a passport issued in his name and with his photograph. He said that he had to go to make the passport ‘credible’.  In his Departmental interview he said that he did not travel to Iraq but paid someone to get it. He also said that it contained his own details and photograph and name, although he was told to memorise a date of birth. At the Tribunal hearing he said that he did travel to Iraq with his brother, but he did not remember saying his passport was in his own name, and as far as he remembers it did not have his real name. When asked about these inconsistencies at the Tribunal hearing, he said that in 2018 he had lost his [Body Part 1] and he was very angry and upset and could not control himself. He said that at the Department interview he was asked questions about his aunt and son which had nothing to do with him, implying that this led to confused answers. The Tribunal does not accept that the applicant would not remember whether or not he went to Iraq to collect the passport as this is a somewhat significant event.

6. Another reason that the Tribunal was concerned about the credibility of the evidence about the fraudulent Iraqi passport was the fact that the applicant was able to leave via the airport in Iran without difficulty. According to DFAT and country information from multiple sources, including those cited in the Department’s decision, it is ‘next to impossible’ to bypass security procedures at this airport, because they include computerised cross-checking and multiple layers of physical security and document checking. [29] The delegate of the Department concluded that it was more likely that the applicant travelled on an Iranian passport to Australia, given the applicant’s inconsistent information about how he obtained an Iraqi passport and the fact that he chose to leave through the Imam Khomeini airport, which is known to be strict in screening passengers. The delegate noted that an easier method for someone without proper documentation would have been to leave through the border with Turkey, which has been described as porous and possessing well-established smugglers’ routes.[30] There has been strict and sophisticated scrutiny at airports, including checking law enforcement databases tracking passport issuance which made it very difficult to depart from the airport on forged passports.[31]

   [29] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020, pp.72-73.  

   [30] Danish Refugee Council, Landinfo and Danish Immigration Service, ‘Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures, 1 February 2013, page 67  

   [31] Including: DRC/DIS, ‘Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc.’, April 2009; Danish Refugee Council, Landinfo and DIS, “Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures”, February 2013;   Canadian Immigration and Refugee Board of Canada (Canadian IRB), “IRN101054.E: Iran:The passport; its features and procedures for application including whether an applicant who was refused a passport would be notified and have recourse; the use and prevalence of fraudulent or counterfeit passports to exit Iran; ease of illegal entry into and exit from Pakistan, Turkey, and Azerbaijan overland, and Oman and the United Arab Emirates by sea; whether authorities seize passports from certain individuals to prevent their departure from the country (2004 - February 2006)”, 3 April 2006, OGF 10222E67  

7. These concerns did impact on the Tribunal’s consideration of whether the applicant travelled on an Iraqi passport.

8. The applicant then confirmed, on 25 January 2023 that in fact he travelled to Australian on an Iranian passport not an Iraqi passport as he is an Iranian citizen. He said that he had destroyed the Iranian passport as he was told that if he did not do so he would be sent back to Iran.

9. The Tribunal accepts the applicant’s recent evidence that he is an Iranian citizen and had an Iranian passport. The fact that he had an Iranian passport is prima facie evidence of his Iranian nationality. He has explained his change in evidence as follows:

   1. I am a citizen of Iran. Previously I said that I was not a citizen of Iran but this is not correct.

   2. My father was born in Bahgdad, Iraq. My mother was born in Iran.

   3. () is my given name. () is my father’s name. [Name] is my father’s surname and from what I understand this is because [the first part] is my grandfather and [the second part] is his father. () is my tribe name. This is the way that my father’s family’s names are. This is why I am ().

   4. My name in Iran on documents was (). As I understand it the name () was given to my father when he registered in Iran. Because he was from Iraq they told him he needed an Iranian name. I don’t know much about this and my father has passed away many years ago.

   5. When I was born I don’t know if I had a birth certificate. I think when I went to school I was on my parents ID but I am not sure. My parents were generally the ones who arranged for me to get documents when I was younger.

   6. Before I went to military service I got my own birth certificate and identity card from the Iranian authorities. I have attached a copy and translation of these documents.

   7. When I was coming to Australia I was very scared about what was happening and I did not know what was happening. From the time I arrived in [Country 2], including on the way to Australia, and even when I was in Christmas Island, people said to me thing like, ‘you are Faili Kurd, you need to say you don’t have Iranian documents. If you do have a passport they can send you back. You need to not say you are Iranian’. I was confused what to do and scared to be sent back to Iran. I said I was not a citizen of Iran and then later I was scared to change my case. I am so so sorry that I provided this wrong information.

   8. I spoke to my lawyer about this in 2018. The lawyer said something like ‘you are not sure you are a citizen. Your best case is to say you don’t know if you have citizenship.’ This was the lawyer Ali Khafaji.

   9. I then changed my lawyer and I had to pay $3500 dollars and asked them to check my case. I was so worried and so exhausted about lying to immigration and I did not want to continue to lie.

   10. My lawyer worried me and told me that it would be bad for my case to change and that I should close my mouth. I was scared to say something different in the AAT hearing.

   11. In December 2022 I sent my Iranian citizenship documents to my lawyer and he told me he could not understand them. I then got an official translation of those documents and sent to my lawyer. I didn’t know if he has sent them to the AAT. After I got advice from RACS about the AAT letter I think he did not send them.

   12. I called the AAT and told them that I had a problem with my lawyer. The AAT told me to get advice from RACS and now I am able to provide this true statement.

   13. There are other things that are wrong in my application. I did do military service in Iran. I also had an Iranian passport and used it to leave Iran. I was told by the people smuggler that I had to destroy my Iranian passport or I would be sent back to Iran. I was scared of being sent back to Iran and harmed and so I destroyed it. I am very sorry about this.

   14. I am scared that in Iran I will be harmed for all the reasons I told the AAT because I am against the government of Iran, because I am Faili Kurd, and due to my time and actions in Australia. I also fear because I have a wife and children who are not Muslim.

10. The Tribunal accepts that the applicant is an Iranian national on the basis of this evidence. It is feasible that the applicant lied about his citizenship from 2011 to 2023 as he was told that he should say he was stateless or he would be returned to Iran. Although the applicant steadfastly maintained that he was stateless from 2011 to 2023, the Tribunal accepts that he was adhering to his original lies. As the Federal Court has noted: ‘Even the most casual observer of the human condition would agree that some people are willing and able to live a lie for their entire lives if there is something sufficient for them to gain from it.’[32] Furthermore, he has said that his mother is Iranian. Under Iranian law, avenues for obtaining Iranian citizenship which are open to Faili Kurds include citizenship through maternal descent.[33] He has also recently provided to the Tribunal a copy of his Iranian birth certificate and national identification card.

    [32] Judge Driver in EFP19 v Minister for ICMSMA (2021) FCCA 1508 (24 August 2021), para 63.

    [33] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

11. The Tribunal is satisfied therefore that the applicant is a national of Iran.

    Did the applicant suffer harm in Iran as a Faili Kurd?

12. Sources indicate that there are three main groups of Faili Kurds who live in Iran: (1) Iranian citizens; (2) those of Iraqi origin who are registered refugees (Amayesh cardholders); and (3) those of Iraqi origin who are not registered refugees (non-Amayesh cardholders).[34] While unregistered refugees are deprived of many rights,  Amayesh card proves legal right of residence and entitles the cardholder access to government services, including healthcare and education. In 2015, the government granted Amayesh cardholders access to Iran’s national universal health insurance scheme. Amayesh cardholders are eligible to receive work permits from the government, giving them the legal right to employment. While Amayesh cardholders can move freely within the province in which they are registered, they are subject to restrictions regarding their ability to relocate to other parts of Iran[35].

    [34] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020.

    [35] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran’, 14 April 2020, p.57.

13. The applicant stated in his application for the POD that he and his family were deprived of many basic human rights in Iran, resulting in, for example, an inability to get public 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 has said that his family were unable to access education beyond the primary level, and have struggled to find employment, except in non-government sectors. He confirmed that he attended primary school in Ahwaz, but he did not complete it after Grade 5. He said that after that ‘the situation was difficult’ and he could not continue. He confirmed that his brothers and sisters also only studied until Grade 5.

14. He told the Tribunal at hearing that he was born in a hospital but does not have a birth certificate as he said that the Faili were not provided with certificates, but only ‘a piece of paper’ and he is not certain what happened to this paper. When the Tribunal put to the applicant that country of origin information suggests that birth records stating a child’s birth date, time and place, and the parents’ details are issued to all children born in Iran, including children of refugees[36] he said that they do issue these and he asked his mother for his, but she does not know where it is. He was asked if he ever tried to get hold of it when in Iran. He said that he did not have identity documents so when they went to official departments, they would not receive assistance.

    [36] DIBP Tehran, ‘Feyli Kurds - obtaining identity travel documents’, 17 September 2015.

15. He told the Tribunal at hearing that he and his family were able to work ‘doing odd jobs’ for cash. He told the Tribunal that his sister, who is married with children, is living with his mother in rented accommodation. He said that her husband is Faili and ‘not doing well’ and their sons can only study until Grade Five, the same level as he reached. He said that his sister ‘does jobs here or there, whatever she can, such as [occupation]. His father worked as a [Occupation 2] for non-government agencies and died when the applicant was about [age] years old. He also said that he was sacked from a soccer team as he was Faili Kurd.

16. He also told the Tribunal that his mother has diabetes and is in a wheelchair but is able to access private services and access medication because he pays for them.

17. The evidence that he did not have a birth certificate is not accurate as he has now provided a copy. In his Statutory Declaration of 25 January 2023 he has confirmed that he is an Iranian citizen. He did not state whether his evidence about discrimination as an undocumented Faili Kurd was also fabricated. The Tribunal notes that Kurds (along with other ethnic minority groups) have traditionally faced discrimination in gaining access to university studies, employment, business licences and economic aid, and exercising their civil and political rights.[37] However given that much of the applicant’s evidence was prefaced on his family being undocumented Faili Kurds, and he has now indicated that they were citizens, the Tribunal does not accept that they suffered significant discrimination in education, health or employment, although there may have been instances of discrimination. The applicant does himself appear to have had consistent work from 1994 to 2011 as a [Occupation 1] at [Employer 1] in [Khoramshahr]. His father also worked and they have accessed health care, albeit some of it may have been private.

    [37] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

18. The Tribunal does accept that the applicant was pushed out of a soccer team as he claimed that this was because of his Faili Kurd ethnicity rather than for reasons of being undocumented.

19. The Tribunal is also satisfied, on the basis of his consistent evidence about these matters, that the applicant was ‘humiliated and beaten a few times by Arabs and Iranians’. The applicant has been consistent since his biodata interview that he was detained on occasion by the Basij and extorted for money, and the Tribunal accepts this evidence. In particular, as mentioned earlier, the Tribunal accepts his evidence that he was returning home after playing soccer in an area called [Village 1] when he was surrounded and ‘something covered my face’. His evidence was persuasive, containing details that are often commensurate with veracity – for example that these attackers ‘forced him to the ground and he felt something sharp against his thigh’. He said that he was terrified and heard his attackers speaking Arabic and Farsi. The Tribunal accepts that he was anally raped by these men and that he was ‘embarrassed’ and could not report it. When explaining this to the Tribunal he said that he could not report it because he was too frightened of police, as ‘Iraqis say they are Iranians and Iranians say they are Iraqis’, suggesting that his ethnicity was a factor in the failure to get state protection. He also said that he was ashamed and could not talk about it, which is a response common to many sexual assault victims and he has physical scars from the incident.

    The refugee criterion

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

1. A person is a refugee if he or she is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country[38].

   [38] Section 5H(1) of the Act.

2. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act, which provides that a person has a well-founded fear of persecution if:

   ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   ·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 above; and

   ·the real chance of persecution relates to all areas of a receiving country.

   Does the applicant fear being persecuted for one of the stated reasons?

3. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. 

4. The Tribunal asked the applicant at hearing what he fears about returning to Iran, and the basis for this. He said that with the current situation, he would be branded as a spy because he is Kurdish as he is returning from Australia, and he fears being tortured or arrested. He referred to the bombing of Kurdish cities. He mentioned a friend, a barber, who is a Faili Kurd and is a permanent resident of Australia who returned to Iran and was imprisoned for six months but managed to secure his release. He also expressed frustration at not being able to see his mother, who is in a wheelchair, and wished he could return, saying that he was unable to do so without facing attention from the authorities.

5. The Tribunal is satisfied that the applicant fears being persecuted for reasons of his Faili Kurd nationality and political opinion given the current violence and suppression of opposition in Kurdish areas.

   Is there a real chance of serious harm if the applicant returns to his home country?

6. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[39]; not only must a person fear persecution, but there must also be a prospect of that fear being realised.

   [39] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <  The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[40]

   [40] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

   101.   In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.

   102.   The applicant claims to fear harm as a returnee asylum seeker from the West who is a Faili Kurd and who has expressed his opinion against the government. The Tribunal is satisfied that the applicant faces a real chance of serious harm if he returns to Iran for the reasons set out below.

   103.   Firstly, the applicant is a Faili Kurd, which is likely to make him more vulnerable to ill-treatment than other sectors of the society, given historical treatment of this ethnic group in Iran. Kurds (along with other ethnic minority groups) have traditionally faced discrimination in gaining access to university studies, employment, business licences and economic aid, and exercising their civil and political rights.[41] While DFAT stated in April 2020 that it was not aware of specific instances of authorities targeting Faili Kurds for mistreatment[42] and other sources have indicated that generally Iran has not targeted Fail Kurds specifically[43], there is evidence that both registered and unregistered Faili Kurds do not enjoy the same rights as other Iranians and this may indicate that there is some level of discrimination against Faili Kurds. The UK Home Office has taken this somewhat further, suggesting that ‘the Iranian state targets dissident groups including religious and ethnic minorities, such as those of Kurdish ethnic origin’.[44]

   [41] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [42] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [43] Danish Immigration Service and the Danish Refugee Council, ‘Iran: Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, March 2018, Home Office, < May 2022, Para 85.

   104.   Secondly, the risks of harm are heightened for Kurds engaging in or associated with political activities[45] who are returnee asylum seekers. There has been a change in government since the Department decision. President Raisi took power in June 2021. His government is conservative, with a very poor human rights record.[46] The applicant was not involved in political groups while in Iran. Although the country sources have suggested that the Iranian authorities are not interested in returnee asylum seekers unless they were activists prior to departure from Iran, conclusions about returnee asylum seekers need to be revisited in light of recent developments in Iran.

   [45] Danish Immigration Service and the Danish Refugee Council, ‘Iran: Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, March 2018, New York Times, ‘A new president takes office in Iran: solidifying hard line control’, 5 August 2021.

   105.   DFAT reported in April 2020 that it was 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.[47] According to reports prior to 2022, authorities in Iran have usually paid little attention to failed asylum seekers on their return to Iran.[48] 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. DFAT reported that those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. DFAT stated that arrest and mistreatment are not common during this process.[49] DFAT, in its April 2020 Country Information Report, also notes that 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.[50]

   [47] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [48] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [49] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [50] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   106.   DFAT also reported in April 2020 that as far as it was aware, the authorities do not check the social media accounts of Iranians returning from abroad.[51]  According to DFAT, this includes posting social media comments critical of the government (noting that heavy internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. DFAT suggests that 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.[52] The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (such as for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.[53] Other sources prior to the 2022 protests in Iran reached similar conclusions. Academics consulted by the Immigration and Refugee Board of Canada also stated that treatment of returnees depended on the profile of the activists, with those who were well-known facing higher risk.[54] Various sources prior to the current protests in Iran suggest that if an individual was critical of the Iranian government whilst abroad, the possible repercussions upon return would depend on the content and scope of those activities, and, especially, the level of activism upon return.[55]

   [51] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [52] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [53] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020.

   [54] Immigration and Refugee Board of Canada, 'IRN200457. E -Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', 22 February 2021.

   [55] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’, 14 April 2020, p.70; Immigration and Refugee Board of Canada, 'IRN200133. E -Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status’ (2017-February 2020)', 09 March 2020; Danish Immigration Service and Danish Refugee Council, ‘Issues concerning persons of ethnic minorities, Kurds and Ahwazi Arabs’, February 2018, p.6; Danish Immigration Service and Danish Refugee Council, ‘Iran: House Churches and Converts’, February 2018, p.8; UK Home Office, ‘Iran: Christians and Christian converts’, March 2018, pp.5, 29–32, OG9EF767914.

   107.   As discussed above, the applicant did not have a political profile prior to departure and therefore according to the above sources, there would be a low risk of adverse interest in him from authorities.

   108.   In contrast to the above sources, in 2014, the Danish Immigration Service cited an unnamed source from Elam Ministries (a Persian-language Christian missionary service) that noted that those who spent extended periods out of Iran are more likely to be suspected of spying upon return.[56] In February 2021 a representative of Human Rights Activists News Agency (HRANA) stated that there had been multiple reports of dissidents being arrested upon their return and ‘even lured into return[ing] to Iran’ to then be arrested.[57] There are some examples of failed asylum seekers being prosecuted and/or punished for political or other activities upon return; these appear to have obtained a profile whilst abroad or else had a criminal record in Iran before leaving.[58]

   [56] Danish Immigration Services, ‘Update on the Situation for Christian Converts in Iran’, June 2014.

   [57] Immigration and Refugee Board of Canada,  'IRN200457. E -Iran: Treatment by the authorities of anti-government activists, including those returning from abroad; overseas monitoring capabilities of the government (2019-February 2021)', 22 February 2021, 20210315091836.

   [58] UK Home Office, < May 2022.

   109.   While the reports predominantly point to low risk on return, with some exceptions, there have been significant changes in Iran in 2022 which significantly increase the risk to the applicant. This was referred to by the applicant. When it was put to him at the Tribunal hearing that it is stated in the DFAT Country Information Report that they are not aware of specific instances of authorities singling out Faili Kurds for mistreatment, regardless of the category to which they belong’[59], the applicant said that the government does not show mercy to their own citizens let alone Failis. He said that the whole world has seen their actions in the recent demonstrations.

   [59] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Iran 2020’,14 April 2020.

   110.   In September 2022, protests erupted across Iran over the death of Mahsa Amini, a 22-year-old Kurd who had been detained for inappropriate dress. The demonstrations, the largest in many years, have evolved into calls for the ouster of the supreme leader, and an end to the Islamic Republic. The security forces have responded with deadly force.[60]A recent ABC article claimed that the Human Rights Activist News Agency said 410 protestors had been killed in total and 17,251 people arrested.[61] A report of the Human Rights Activist News Agency also documented the use of batons, electric shocks, pepper spray, tear gas, pellets, plastic bullets and handguns. The Basij is referred to as the key body used to suppress protestors.[62] Protests have involved all classes of Iranians, including lower, middle and upper classes and different ethnic groups and religions.[63] Human Rights Watch reports that In the aftermath of protests related to Mahsa Amini’s death, Iranian security apparatus arrested hundreds human rights defenders, students, women’s rights activists, lawyers, journalists, and summoned and interrogated dozens of actors, athletes, and other public figures in connection to their expressed supports of the demands of the protestors.[64]

   [60] United States Institute of Peace, News, < 21 November 2022.

   [62] Human Rights Activists News Agency, < September/October 2022.

   [63] Human Rights Activists News Agency, < September/October 2022.

   [64] Human Rights Watch, World Report 2023 – Iran, < World Report 2023: Iran | Human Rights Watch (hrw.org)>.

   111.   There has also been specific targeting of Kurds. An ABC article in November 2022 reported that at least four demonstrators were killed by troops in anti-government protests in the Kurdish region of Mahabad[65]. An article in Reuters in October 2022 also noted that the Iranian authorities had stepped up a crackdown on Kurdish regions, deploying Basij militia troops in response to protests.[66] Protests and violence have taken place in Ahwaz[67], the applicant’s home region.

   [65] ABC News, < 21 November 2022.

   [66] Reuters, < October 2022.

   [67] Human Rights Activists News Agency, < September/October 2022.

   112.   One report on the protests said that there had been an unprecedented solidarity between Iranians in the diaspora and Iranians within the country.[68] It referred to the ‘international community’ becoming the ‘voice of the Iranian people in an unprecedented way, and by disseminating information and taking various actions, they have drawn attention to what is going on in Iran’.[69] There is no doubt that the Iranian government is aware of this movement. Human Rights Watch has reported that in October 2022, a ranking Iranian judicial figure threatened legal action against two UK-based Persian news outlets, accusing them of inciting “terrorist acts” for their reports on the protests over Amini’s death.[70] Australian Iranians have also become active, calling on the government to sanction the government.[71] An article in The Australian quotes academic Kylie Moore-Gilbert, who spent more than 800 days in Iran’s Evin prison, who states that Iranian Australians were calling for tangible action from the Australian government including sanctioning officials, listing the Islamic Revolutionary Guard Corps as a terrorist organisation and addressing Iranian government infiltration domestically.[72]

   [68] Human Rights Activists News Agency, < September/October 2022.

   [69] Human Rights Activists News Agency, < September/October 2022.

   [70] Human Rights Watch, World Report 2023 – Iran, < World Report 2023: Iran | Human Rights Watch (hrw.org)>.

   [71] The Australian, < 11 November 2022.

   [72] The Australian, < 11 November 2022.

   113.   A recent report in the Sydney Morning Herald[73] quotes Iranian democracy protestors in Australia who claim family members have been arrested in retaliation for their actions. One protestor has said that his mother has been arrested and asked questions about them in Australia. While the reports are unverified, they have been widely accepted by academics in Australia, including Kylie Moore-Gilbert who said that she had heard direct reports from other Iranian Australians whose relatives had been harassed and questioned about them. She also claimed that there was a lot of fear in the Australian community due to the involvement of agents and informers in Australia, recording protests, sending threatening messages and letting people know they are being watched. A Melbourne lawyer and anti-regime activist is also quoted in the article. He said that he had direct knowledge of six Australian Iranians whose relatives had been arrested or interrogated since the protest movement began. The article also refers to the head of Britain’s MI5 intelligence agency claiming recently that Iran was plotting to kill or kidnap 10 British residents.

   [73] ‘Sydney Morning Herald. ‘Iran cracks down on family of Australian protestors’, 16 January 2023, <  The Australian Federal Police has urged Iranians in Australia to report harassment or surveillance by Tehran authorities to the national security hotline, including monitoring of social media.[74]

   [74] The Guardian, ‘AFP urges Iranians in Australia to report harassment by Tehran authorities as anti-government protests escalate’, 21 December 2022

   115.   In this environment, where the diaspora is connected to the protest movement, including in Australia, it is conceivable that the authorities would be observing returnee asylum seekers closely. The applicant has been in Australia since 2011, such that there may be particular interest in why he has been out of the country for so long. The Tribunal accepts the applicant’s evidence at the Tribunal hearing that he is a Shi’a Muslim but is not practising and does not believe strongly. He explained that he is not a Christian but says that he was born on Christmas Day and was taken to church to get a gift so ‘feels closer to Christ’. He said that he has seen injustices so is ‘detached from Islam’ and does not practise any religion although he believes in God. While lack of interest in Islam is not a risk factor on its own, in conjunction with his ethnicity, his return after so long in Australia and his political views, discussed in detail below, the authorities may well take particular interest in him as a person opposed to the regime. Furthermore, he has a non-Muslim partner which again may further interest in him on return.

   116.   The Tribunal accepts also that the authorities may become aware of his Facebook posts in Australia. The Tribunal accepts that the applicant has re-posted stories on Facebook which are critical of the regime because of a genuine desire to give the protestors a voice as he opposes the Iranian regime, rather than to bolster his claim.[75] As discussed earlier, the applicant’s overall credibility has been undermined, given that he fabricated evidence to the Tribunal abut being stateless in 2011 and maintained this untruth until 2023 even giving evidence of this at a recent Tribunal hearing. The Tribunal accepts however that although aspects of evidence may be untrue, other aspects may be credible. In Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[76] Foster J stated that ‘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.’ There may for example, be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

   [75] See section 5J(6) of the Act which requires the Tribunal to disregard conduct in Australia unless satisfied that it was entered into other than for the purposes of the refugee claim.

   [76](1996) 40 ALD 445

   Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee.  “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[77]

   [77] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

   117.   A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

   the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

   118.   After hearing his evidence about the reasons for the Facebook posts, the Tribunal is satisfied that he made the posts out of a genuine desire for people to hear about the brutality of the current regime. He said that he has put this information on Facebook opposing the regime since the demonstrations had started and his Facebook profile is public, because he has many non-Iranian friends and he wants them to see that the regime is killing people. He said that he was born in Iran and they need to unite against the system and ‘help each other’. He said that he is not politically active, but he needs to’ join Iranian people so the whole world knows about the regime’. He said that he knows they have been suppressing the Kurds for a long time, but they have been bombarding Kurdish lands recently. He said that the people are from his culture, and he must support them. He said at the Tribunal hearing that if it was the case that he wished to post anti-government posts to bolster his refugee claim, he would have done it five or six years ago. He told the Tribunal that his motive is not political or ‘for a visa’ but it is to be a voice for what is happening in Iran, and to show solidarity and join other Iranians. He was asked if he knew that this might bring him to the adverse attention of the authorities. He said that this ‘does not make any difference anymore’, he has ‘seen the cruelty’ and he wants to see change. He said that the Iranian government would show no mercy whether or not he posted on social media. He said that there are many non-Iranian citizens who have gone to Iran and are seen as political for no reason. He fears that this would happen to him, and he does not want the Australian government to think he is opposing the government for the purposes of bolstering his visa claim.

   119.   He referred to one post as follows: ‘a gathering of women to raise placards from the government in a bid to show their stand on equal social life. (They) want to live an independent life both in thought and in life which in my opinion This is something I wholeheartedly agree with and would like everyone in Iran to come out and call for their rights and equality in Iranian society’.

   120.   He also referred to the death of Amini, stating that ‘she wanted to claim her right to live more independently.’ He said that he wanted to support this ‘from the bottom of my heart’. He referred to both the Kurdish minority and women to come being able to come out and speak more clearly. He said that there was a need to ‘fight relentlessly’ for ‘women, their lives and freedom’. He said that he wanted to fight for the rights of those ‘who have Iranian nationality from their origins and those who have migrated to live in Iran.’ He said that he wanted Iranian and non-Iranians to know what was happening. He referred to stories he had re-posted in which women ‘stand with their backs facing a brutal situation of murder and harming the people and the country form the police and affiliates of government. It made me feel the tremendous strength and frustration of those living in Iran right now. It must have finally reached the end of that patience. I'm always posting my encouragement and reminder that from that day I chose to immigrate from such a cruel country.’ He said that a post of women burning a hijab showed ‘an active claim for rights, not giving up, singing and dancing. It conveys fun and support to those who dare to oppose this government. About persecution and compulsion in life It can be clearly seen that the current government is not a government acting for the people of the country. It is a government that is only harsh, persecuted, forced, and does not give equal importance to humanity.’

   121.   He reiterated that he is opposed to the authoritarian nature of the Iranian government and the historical oppression of Kurds, expressed to the Tribunal as follows:

   I was born in Iran where my parents were born in Iraq. Family immigrants to live in Iran. But when I was born, Iran was very well-being, grow up start to change the government causing social division. The Iranian government dislikes the Kurdish minority and is trying to genocide. Genocide or the need to eradicate the Kurdish tribes has continued to this day... Because the whole country is oppressed by the government. The government holds its supreme power to impose regulations, prohibitions such as banning the removal of the hijab, prohibiting women from working.

   122.   The Tribunal accepts these submissions about the reasons for posting the stories, as they appear heartfelt, and he has expressed a deep-seated hostility to the government, both because he believes in democratic ideals and supports the movement to overthrow the current regime, and because he has been frustrated by the treatment of Kurdish people. The Tribunal accepts the applicant’s evidence that he views the current protests as a positive step towards progressing towards an Iran which respects the rights of minorities. This view is taken by many Iranians globally. Notwithstanding that there are serious questions about his overall credibility given that he changed his evidence after over ten years of maintaining an untruth, the Tribunal accepts that in respect of his political views, he genuinely opposes the current regime and wants to highlight the cruelties of the regime by posting on social media.

   123.   The Tribunal is satisfied that the applicant’s profile as a returnee Faili Kurd, who has posted anti-regime stories, would create adverse attention for him on return. In the UK Upper Tribunal case, ‘XX’ the Upper Tribunal found, ‘discovery of material critical of the Iranian regime on Facebook, even if contrived, may make a material difference to the risk faced by someone returning to Iran. The extent of the risk they may face will continue to be fact sensitive. For example, an Iranian person of Kurdish ethnic origin may face a higher risk than the wider population’ (paragraph 103).[78] In the reported case of ‘AB and Others’ the Upper Tribunal also made reference to the opportunistic use of material deemed critical of the Iranian regime and held that:

   [78] UK Home Office,< May 2022.

   We do not find it at all relevant if a person had used the internet in an opportunistic way. We are aware of examples in some countries where there is clear evidence that the authorities are scornful of people who try to create a claim by being rude overseas. There is no evidence remotely similar to that in this case. The touchiness of the Iranian authorities does not seem to be in the least concerned with the motives of the person making a claim but if it is interested it makes the situation worse, not better because seeking asylum is being rude about the government of Iran and whilst that may not of itself be sufficient to lead to persecution it is a point in that direction’ (paragraph 464).[79]

   [79] UK Home Office, < May 2022.

   124.   The Tribunal accepts that if the applicant were to be questioned, there is no doubt that the authorities would become aware of the applicant’s anti-government opinion. Further, there is the possibility that the authorities would become aware of his political views by observing his Facebook posts in 2022, where he has expressed concern about the Iranian government’s actions. Where a returnee has expressed their opinion against the government, in an environment where the diaspora has had a role and given the conduct of the authorities towards protestors in the last few months of 2022, the Tribunal is satisfied that there is a real chance of serious harm. The Tribunal notes that in the findings in the Upper Tribunal case of HB (HB (Kurds) Iran CG [2018] UKUT 430 (IAC)), it is stated that ‘even “low-level” political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment.’[80] According to the UK Home Office report:

   [80] UK Home Office, < May 2022.

   Iran’s constitution and legal framework restricts freedom of expression and freedom online. Penalties for breaching the 2011 Cyber Crime law range from the death penalty for crimes committed against public morality and chastity, to lengthy custodial sentences, fines, and judicial orders to close organisations and ban people from using electronic communications. The Iranian authorities have widespread control over the country’s internet, which has approximately 57.4 million users in a total population of around 82 million. Iran improved and widened its cyber intelligence capabilities after the 2009 post-election Green Movement protests. Since then, significant restrictions on content have been in place. The Basij Cyber Council, the Cyber Police (FATA), the Cyber Army, the Iranian Revolutionary Guards Corps (IRGC) and its affiliated Centre to Investigate Organized Crimes (CIOC) are known to monitor and track alleged cyberthreats to national security or opposition to the government. This sometimes led to the arrest of online activists who may face charges for vaguely-worded offences such as ‘anti-revolutionary behaviour’, ‘corruption on earth’, ‘siding with global arrogance’, ‘waging war against God’, and ‘crimes against Islam’. Iran increases its monitoring, and imposes local (and, on one occasion, nationwide) internet shutdowns, in the lead up to significant events, in times of political uncertainty and during outbreaks of protests… The online sphere is heavily monitored by the state, though there is no evidence to suggest that Iran operates a mass surveillance programme to monitor the online activity of all its citizens. Persons posting content critical of the government may attract adverse attention, especially if the content is shared on domestic messaging platforms. Thousands of people in Iran have been arrested and detained for their online activities, including for their criticism of the government, ‘immoral’ content, content deemed a national security issue, and for ‘spreading false rumours’. Almost 75,000 people were arrested for online activities between 2010 and 2018, and 3,600 people were arrested between March 2020 and April 2021 for spreading online rumours relating to COVID-19… The Iranian authorities are able to monitor the online activities of persons to varying degrees, depending on the platforms used, and any additional precautions taken by individuals, such as the use of an alias or VPN. Social media users whose posts are deemed critical of the state or against its high moral standards, or who comment on sensitive issues, may be subject to treatment, including harassment, arrest, ill-treatment, torture and criminal charges, that is sufficiently serious, by its nature or repetition, to amount to persecution.[81]

   [81] UK Home Office, < 28 September 2022.

   125.   Although earlier country sources suggested that there is minimal targeting of Faili Kurds by the Iranian authorities generally, the Tribunal is satisfied that there is a real chance of serious harm for this applicant, given the widespread and brutal suppression of opposition currently taking place in Iran, and the fact that the applicant has posted anti-regime material on social media and will have some vulnerabilities returning as a Faili Kurd who has been out of the country for a significant time period. The Tribunal is satisfied that the chance of harm is substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379) given the current conduct of the regime and that it would relate to all areas of the country.

   126.   Section 5J(2) of the Act provides that a person does not have a well-founded fear of persecution if effective protection is available. As the harm would be from the authorities, the Tribunal is not satisfied that effective protection would be available.

   127.   Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take steps to modify their behaviour. The behaviour that is expression of political opinion is an exception as a person is not required to alter or conceal political beliefs.

   128.   The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his political opinion (s 5J(4)(a)), and that his ethnicity and returnee status would exacerbate the risks to him. In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition that in assessing the seriousness of harm, it is necessary to have regard to personal attributes and vulnerabilities. The Tribunal is satisfied that the applicant’s depression and anxiety could lead to an inability to recall events and present matters to authorities in an articulate manner, which is likely to heighten the harm he would suffer. The Tribunal is satisfied that the harm would involve serious harm (s 5J(4)(b)) as it is described in s 5J(5) of the Act, as it likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent months towards political opponents, that the harm would involve systematic and discriminatory conduct (s 5J(4)(c)).

   129.   In conclusion, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for the reason of his political opinion were he to return to Iran in the reasonably foreseeable future.

   CONCLUDING PARAGRAPHS

   130. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

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

   Jane Marquard
   Member

   
   

   Attachment A  -  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.

   …

   
   ‘Feyli Kurds—obtaining identity travel documents’, 17 September 2015, p.2.