1804721 (Refugee)

1804721 (Refugee) [2022] AATA 1865 (28 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1804721

COUNTRY OF REFERENCE: Iran
MEMBER:Tamara Hamilton-Noy
DATE:28 April 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second, third and fourth named applicants satisfy s.36(2)(a) of the Migration Act; and
(ii)that the primary review applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicant children.

Statement made on 28 April 2022 at 1:55pm
CATCHWORDS
REFUGEE – protection visa – Iran – imputed political opinion – refusal to assist Quds Forces – fear of arrest – fear of torture – female genital mutilation – forced marriage – returned asylum seeker – members of the family unit – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91WB, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The primary review applicant [named] (the applicant) and the second-named applicant arrived in Australia [in] December 2011 as holders of a [Visitor] visa and departed Australia [in] January 2012.
On 20 March 2014, the applicant was refused the grant of a [Visitor] visa.
On 23 September 2015, the applicant was refused a skilled regional sponsored visa on the basis he had been granted the maximum number of visas of the specified class in the 2015/2016 financial year.
On 11 August 2016, the applicant was granted a [Visitor] visa and was sponsored by his brother.
The applicant and second-, third- and fourth-named applicants (the applicant children) arrived in Australia [in] September 2016 as the holders of a [Visitor] visa.
The applicants claimed protection on 21 November 2016.
On 20 February 2018, a delegate of the Department found that the applicants were not owed protection.
On 22 February 2018, the applicants applied to the Administrative Appeals Tribunal for a review of this decision.
Claims and Evidence
Evidence before the Department
The Tribunal notes that the applicant and applicant daughters were originally joined in the protection application with the applicant’s wife, [Ms A], from whom he claims he is estranged. In the written protection application, the applicants indicated that only the applicant is making claims for protection.
In the written protection application, the applicant stated that he was born in [his home town in] Khuzestan, Iran, that both parents are Iranian citizens and that, at the time he claimed protection, he had a right to enter and reside in [Country 1] due to a work permit by [Employer 1]. He stated that he belongs to the ‘Balouchestan’ ethnic group. The applicant stated that his parents are deceased and that he has [specified family members] living in Iran, one [sibling] in [Country 1] and one brother in Australia. The applicant stated that he lived in Shiraz from 1985 to 1990, [another city] from 1990 to 1998 and in [Country 1] from 1998 to 2016.
The applicant stated he is claiming protection from returning to Iran and [Country 1] because in the last two months, prior to his protection visa application dated 27 September 2016, he has been subject to significant intimidation, harassment and threats by the Quds force to use his [employee] access at [Employer 1] and [Worksite 1] to facilitate sending items to unknown personnel. He is unable to return to [Country 1] because he would be hunted by the Quds force and Iranian Secret Services and [Country 1] authorities. His wife had been influenced by his father-in-law who acted as a facilitator between Quds agents and he was ‘therefore’ physically assaulted by his wife. He stated that he did not seek help because if he reported the Quds force plans to [Country 1] authorities, he would be arrested as an Iranian agent and deported to Iran where he would face the Islamic Republic justice system which has documented records on human rights abuse, torture without charge and execution. The applicant stated he is now a traitor in the eyes of the Iranian Quds and [Country 1] authorities and he would be arrested on security grounds.
The applicant provided to the Department a Statement of Claims, setting out his claims in more detail, which were (in summary) that:
·He grew up in Iran where he served in the military for two years and then moved to [Country 1] in 1998 to work at [Employer 1]. He eventually became a [specified role] and then transferred to the [named] department and [in Role 1] which allowed him access to [specified information] and restricted areas.
·His father-in-law was interested in the work he did. They had a conflicting relationship due to his father-in-law’s extremist Islamic views.
·Following an incident in September 2015, he was placed under pressure to cooperate with the Quds Forces. His father-in-law introduced him to two men who had plans regarding [travelling] to particular destinations. Then these men told him that he would receive a call from the embassy. The embassy called and demanded he help brothers in [Country 2]. He received another call requesting he report to the embassy and, when he attended, he met two men who were members of the Revolutionary Guard, who asked questions about [his work arrangements]. They reminded him of an incident that had occurred in 2009, where he had met two secret service men who asked him to cooperate with them in exchange for the safety of his family and other opportunities he may receive. They requested to meet him again and questioned him on his access to [Worksite 1]. He went to [Country 1] [in] January 2016 and gave information for three different countries and they made a particular request for one [assignment]. He was given instructions to accept [a parcel] for [processing] and was to take a fee of $5,000 per [parcel].
·He is not political or religious and did not want to get involved with the regime. He decided to refuse their offer. His father-in-law heard news of his refusal and began making threats towards him and spoke of informing the [Authority A] in Iran. He was interviewed by them in 2008 to 2009 and they advised him to disclose information, but he did not say anything in fear of losing his job and being deported back to Iran. His father-in-law threatened that he would be prosecuted by [Judge A], [known] because of his harsh sentences.
·He had continued to have issues with his father-in-law who had forced female genital mutilation on his daughters and tried to enforce this on the applicant children. His father-in-law had plans of marrying off the eldest applicant child to an older man.
·[In] April 2016, the applicant’s father-in-law arrived unannounced to his house in [Country 1] and was violent and made scenes because the applicant refused to assist the regime. His children were living in fear and the applicant could not cope with this any more so confided in his wife and spoke about relocating the family. His wife did not agree with him and, following the discussion, assaulted him which left him with [injuries].
·The threats continued on [a day in] June 2016. The IC forced him to disclose information on two more occasions and advised that if he did not cooperate, he would be facing severe consequences once his residency permit expired in [Country 1]. He had given them information on [two specified countries] and when leaving they had warned him of what was to come, stating that their abilities and power would be soon tested on [his employer]. Following these statements, [Worksite 1] was closed [in] September 2016 due to [a security threat]. Since that incident he grew increasingly fearful and did not feel safe.
·The applicant then applied for a visitor visa. His wife did not want to leave [Country 1] and requested a travel ban for the children and continued to assault and abuse him. He convinced her they were going for a holiday and she said she would meet him at the airport. She then reported that he had stolen her passport and did not come to [Australia] with him.
·He had no choice but to leave [Country 1]. [Country 1] will not help him as he will be seen as a threat to security. He is unable to receive assistance from anyone as his father-in-law has strong influence on the family and he will be handed over to the courts and prosecuted for not helping their terrorist regime. He is unable to relocate as [Authority A] is a powerful department and it is not possible to hide from them.
Also contained on the Department files were identification documents; documents relating to the applicant’s employment and training; media articles about arms smuggling in the middle east, the closure of [worksites] in June 2016 and increased screening on Australian and US flights; intervention order applications and orders between the applicant and his wife; an email the applicant claims to have sent to [Employer 1] in February 2017; lease, utility and bank documents; medical documentation about claimed harm to the applicant, his wife and one of the applicant children and medical issues of the applicant; photos and shopping lists; Magistrates Court documents. Also on the Department files were documents provided by the applicant’s wife which included documents relating to family court proceedings, her contact with the Australian embassy, intervention orders and application, [Country 1] court proceedings and the applicant’s wife’s notification of a change in circumstances. Relevant parts of these documents are discussed further below.
The applicant attended an interview with the Department on 9 May 2017. The Tribunal had access to, and has listened to, a recording of the interview.
A delegate of the Department found that the applicant and his wife had marital difficulties while living in [Country 1], that their marriage had broken down and they had sought intervention orders against one another since arriving in [Australia] and that they were yet to sort out custody matters relating to the applicant children. The delegate accepted the applicant had been residing in [Country 1] since 1998, that he worked for [Employer 1] and that his most recent position was as a [Role 1] located at [Worksite 1]. The delegate accepted the applicant had a permanent pass for the [restricted areas] but did not accept this was evidence that he could [redirect parcels] and send them to different destinations for Quds Force or Iranian secret agents in [Country 1].
The delegate had regard to [evidence] of automated [processes] at [Worksite 1] and found that there was minimal to no intervention with the [processing] of [parcels]. The delegate found there was no opportunity for [interference] unless someone physically [intervened] at the point it was loaded [for transport]. The delegate found it strange that after [number] years of employment and a senior position, the applicants had travelled economy class to Australia. Thirdly, the applicant had provided an email he had allegedly sent to a security officer and chief executive officer of [Employer 1] but the email addresses both had errors in the spelling of the names. The applicant had provided a media report about [the security threat at Worksite 1], but the delegate found there was no evidence that this was the result of the applicant having received a warning [in] June 2016. The delegate did not accept the applicant was of adverse interest to the authorities or had been threatened by them. Further, the applicant’s claims for protection were raised at the time at which he was advised his application for the grant of a skilled visa could not be considered. The delegate found that the applicant is not of interest to Iranian authorities.
The delegate also did not accept the applicant’s claims that his father-in-law wants to subject the applicant children to FGM or that he would forcibly marry the oldest applicant child to an older man. On the basis of these findings, the delegate did not accept the applicant is a refugee as they did not accept that he fears harm in Iran for one of the reasons set out in s.5J(1)(a), or that he is owed complementary protection as they were not satisfied there is a real risk he faces significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 23 February 2018, the applicant provided to the Tribunal an email outlining the shared care arrangements for the applicant children.
On 29 September 2021, the applicant provided to the Tribunal written submissions in addition to a range of media reports (numbered from 1 to 82), relating to prison conditions, women’s human rights, Salman Rushdie, COVID-19 vaccines, the death penalty in Iran, EU and UN documents reports relating to Iran, the UK Home Office reports on Iran, DFAT Reports for Iran, Iran’s Islamic Revolution and Revolutionary Guards, foreign and defence policies and Iran’s terrorism network, Iran’s role within the middle east and relationship with other middle eastern countries, terrorism, human rights, sanctions and treatment of returned refugee claimants by Iranian authorities. The applicant also provided documents relating to intervention orders and family court proceedings.
On 30 September 2021, the applicant provided a further article about Iran’s networks in the middle east and an audio file of his Department interview.
The Tribunal hearing was held on 9 November 2021, on which date the applicant attended the hearing with his representative and gave evidence on affirmation.
Following the hearing, on 3 December 2021, the applicant’s representative provided further submissions to the Tribunal, setting out the relevance of the large volume of documents the applicant had previously provided to the Tribunal and providing further submissions in support of the applicant’s claims for protection. In the submissions, the representative noted that the applicant’s brother was no longer seeking to give evidence to the Tribunal in the event a resumed hearing was held.
The Tribunal notes that the applicant and applicant children were originally joined in the protection application by [Ms A], from whom he claims he is estranged. Subsequent to the claimed separation, [Ms A] lodged separate claims for protection, in which the three applicant children are also named. The Member has the conduct of that matter also and, where relevant, has referred below to the [Ms A’s] evidence in assessing the applicant’s claims for protection.
The relevant law
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Under s.65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s.91WB. Section 91WB applies to a non-citizen who applies for a protection visa and is a member of the same family unit as a person who has been granted a protection visa. It provides that the Minister must not grant a protection visa on the basis of s.36(2)(b) or (c) (family member of a person granted a protection visa) unless the applicant had applied for the visa prior to the relevant family member being granted a protection visa. The Tribunal notes that the applicant had applied for the visa prior to the applicant children’s visas being granted and therefore that s.91WB does not apply in the circumstances of this case.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment, reasons and findings
Country of reference
The applicant travelled to Australia on an Iranian passport and has at all times maintained he is a citizen of Iran. The Tribunal accepts that the applicant arrived in Australia from [Country 1] and that he had resided in [Country 1] on a long-term basis due to his employment arrangements. The Tribunal is prepared to accept that the applicant has resigned from his employment and that, at present, he has no right to enter and reside in [Country 1] on the basis that his visa allowing him to return to [Country 1] was cancelled when he travelled to Australia in 2016. The Tribunal finds that the applicant is an Iranian citizen and has assessed his claims against Iran as his country of nationality.

The Tribunal accepts that the applicant children were all born in [Country 1] and remained in [Country 1] due to the applicant’s employment. The Tribunal finds that the applicant children do not presently have a right to enter and reside in [Country 1]. The Tribunal accepts that the applicant children are Iranian citizens and has assessed their claims against Iran as their country of nationality.
Certificate
Contained on file [number] is a s.438 certificate dated 20 February 2018, stating that disclosure of certain information in the file would be contrary to the public interest on the basis that it contains information where the release of such would impact the effective operation of the Department. Several of the documents are internal emails relating to the separation of the applicant and his wife and the need for separate interviews and the Tribunal has not had regard to these documents because their contents are not relevant to the legal issues before the Tribunal. Other documents relate to allegations against the applicant’s wife’s family, but do not explain the source of the information and do not provide any supporting material and, for this reason, the Tribunal has placed little weight on this information in making a decision in this matter.
Claims for protection
The Tribunal accepts the information given by the applicant about his background, which was put consistently in his written protection application, Department interview and in his oral evidence to the Tribunal at hearing. The Tribunal is prepared to accept the applicant’s evidence, given at hearing, that he was born in Iran and remained in Iran up to 1998 when he moved to [Country 1] to find employment after completing high school and then military service. The Tribunal accepts the applicant’s evidence that he has returned to Iran since 1998 but only for work or for short trips and that he has not resided in Iran at any time since 1998. The Tribunal is prepared to accept that the applicant’s father passed away when the applicant was very young, that the applicant’s mother passed away in 2014 and that his [specified family members] reside in Shiraz, [other family members] reside in [Country 1] and another resides in [Country 3]. The Tribunal accepts that the applicant’s eldest brother [named] lives in [Australia].
The applicant spoke in detail and plausibly about his employment history at [Worksite 1] and has provided documentary evidence to the Department relating to his employment [there] and with [Employer 1]. The Tribunal is prepared to accept the applicant has been employed in a range of roles at [Worksite 1], of increasing seniority and that as of 2011 he was coordinating service and compliance of [operations] for [Employer 1] prior to leaving [Country 1] for Australia.
The Tribunal is prepared to accept that the applicant and [Ms A] were married in [Country 1] [in] June 2006 and that they resided in [Country 1] and not in Iran throughout their marriage and prior to travelling to Australia. The Tribunal finds on the evidence provided by the Department that the applicant travelled to Australia with the applicant children [in] September 2016 and that [Ms A] arrived in Australia separately on a later date. The Tribunal is prepared to accept from the information given by both the applicant and by [Ms A] that the applicant and [Ms A] are separated but not divorced and have returned to residing together under the one roof with the applicant children.
The delegate did not accept the claimed reasons of the applicant for leaving [Country 1] and the Tribunal shares the Department’s concerns about the credibility of his claims. For the following reasons, the Tribunal also does not accept the claimed reasons of the applicant for having left [Country 1] and for seeking protection from returning to Iran.
Firstly, the applicant outlined in his written statement of claims that he and his father-in-law had a conflicted relationship due to his father-in-law’s extremist Islamic views and that this culminated in a confrontation at the applicant’s house in April 2016 because the applicant refused to assist the regime. In contrast, at hearing, the applicant described that he had had ‘normal contact’ with his father-in-law up to September 2015, that his father-in-law had some ‘strange’ friends, but that he had not observed anything directly of his father-in-law apart from his strange friends. The Tribunal asked the applicant whether the applicant’s father-in-law had said anything directly to him that had caused him concern and he said no, and that everything was normal, they respected each other, the applicant would visit on weekends and that his father-in-law ‘was not religious, he was normal, he’s a Shia Muslim’. He told the Tribunal that he believes his father-in-law attended a mosque, but he was not sure how frequently.
The characterisation of the applicant’s relationship with his father-in-law, and of his father-in-law’s religious views, forms the basis for the applicant’s claims for protection. It is his father-in-law that the applicant claims to have introduced him to people from Hezbollah, or the Quds Force, or the Islamic Revolutionary Guards at the Iranian consulate because of his claimed extremist views, and the Tribunal finds it implausible that the applicant would so differently characterise his father-in-law’s views and his relationship with his father-in-law if his claims are credible. The discrepancies in this evidence cause the Tribunal grave doubt that the applicant was introduced by his father-in-law to Hezbollah members, members of the Quds force or anyone at the Iranian embassy who looked like members of the Revolutionary Guards.
Secondly, the delegate had significant doubts that the applicant’s role at [Worksite 1] enabled him to access [parcel processing] and the Tribunal shares those concerns. The applicant described his role with [Employer 1] from 2011 until the time he left as auditing operations, identifying corrective action and implementing his concerns with business units. He described a team of people working under him to whom he was providing leadership and guidance and that, day to day, he had two offices, one at [Employer 1’s premises] and one in [Worksite 1] [in a specified] area. He described the offices at [Worksite 1] as also being used by administration, quality, customer service and the [worksite] administration team. He described the [parcel] system at [Employer 1] as being a sophisticated one which was able to identify a [specified assignment] or [parcel] issued to the wrong destination. The Tribunal asked how he would be aware of errors with [parcels] if he was working in such a senior role and he stated that he was in touch with the [parcel] control system. He described two levels of people working underneath him, and a manager and the Vice President working above him. He described that the people working under him dealt with the ’administrative part of the role’, recording data and preparing drafts of reports and auditing and investigating.
While the Tribunal is prepared to accept the applicant’s evidence about his role and the description of his workplace, it does not accept the applicant had direct access to [parcel processing] or the day-to-day operations that would have enabled him to re-route [a parcel]. The description of the people working underneath the applicant as being involved in administration, report preparation and auditing, suggests that the applicant was at least two levels above persons in direct contact with [parcel processing]. Further, the sophisticated system described by the applicant to the Tribunal causes significant doubt for the Tribunal that the applicant would have the capacity to manipulate [a parcel] or destinations through such a system. The implausibility of the applicant being of interest to anyone because of his capacity to re-route [parcels] causes further doubt for the Tribunal that he would be of interest to anyone seeking to manipulate the [parcel] system at [Worksite 1].
Thirdly, the applicant described a series of meetings with two men who had openly introduced themselves as Hezbollah members and to whom his father-in-law introduced him at a first meeting, and with people at the Iranian consulate in [Country 1] who he believed were Revolutionary Guards. The applicant outlined meeting the two men on three occasions, and attending the Iranian consulate on several occasions, and described increasing pressure and threats if he did not cooperate with them despite his claims that he indicated he had no interest assisting the men. The Tribunal considers it implausible that the applicant would meet the men on a second, and then a third, occasion if he was being asked to do what he claims. The Tribunal put its concerns about the applicant’s claims at the hearing. The applicant’s explanation that his father-in-law had said the applicant had to listen to him does not alleviate the concerns the Tribunal holds about the credibility of the applicant’s claims.
Finally, the applicant described to the Tribunal a series of regular meetings with the men and with the Iranian consulate in which he was requested, and later threatened with harm, to undertake work for them. He gave evidence that the last of this series of meetings had occurred in June 2016. Despite the applicant’s claimed significant concern around the implications of what he was being asked to do, he remained in [Country 1] until September 2016. The applicant’s claims that he had remained in [Country 1] as [Ms A] did not want to leave and had requested a travel ban do not alleviate the Tribunal’s concerns about the applicant remaining in [Country 1] after claimed threats had occurred.
After arriving in Australia in September 2016 on a valid visa, the applicant did not email [Employer 1] about his claimed experiences in [Country 1] which, if accepted, indicate significant risk to the [business] and to [customers], until February 2017. The Tribunal considers it implausible that the applicant would remain in [Country 1] for four months if his claims are plausible, or that he would delay advising [his employer] of the risk to the [business] for some five months after arriving in Australia. The delay, in particular, in the applicant advising [Employer 1] about the claimed events adds further significant doubt for the Tribunal about the genuineness of his claims.
For the reasons set out above, the Tribunal does not consider it plausible that the applicant’s position at work enabled him to [redirect parcels], that he would be able to otherwise manipulate the [parcel] system or cause others to do so, or that he would be of interest to anyone because of his employment position. The applicant provided a media article about a man and his girlfriend stealing [parcels] from [Worksite 1], dated [in] January 2019, which the applicant’s representative submitted is evidence of the applicant’s ability to [redirect parcels] and [facilitate] the theft of [parcels]. The Tribunal has considered the information in the article and does not accept that it provides evidence of the applicant’s capacity to [redirect parcels]. Rather, the article is about two individuals who stole [parcels] from a [venue] and the use of the sophisticated information held by the [venue] to identify who had been in the [worksite] at the time. The article does not suggest that [redirecting] was involved or is possible at the [worksite]. Similarly, the Tribunal does not consider that other media articles provided by the applicant, relating to the theft of [parcels] by a [worker], or the theft of [parcels] by a worker working for a company transporting [them], or a worker who stole items from [parcels] [in transit], or the theft of [items] from an abandoned [parcel], provide any evidence that supports that the applicant was in a position to [redirect parcels]. Another media report about the changing of [parcel destinations] relates to [frontline] workers and also does not support that an individual in the applicant’s employment position would be able to access [parcels] at [this] level and change details on [them].
Also for the reasons set out above, the Tribunal does not accept that the applicant’s father-in-law held extremist Islamic views which led to him introducing the applicant to two men from Hezbollah at a café, who spoke to him about his role and about [his employment]. The Tribunal does not accept that the applicant was contacted by anyone at the Iranian Embassy about his role with [Employer 1] or that anyone at the Embassy spoke to him about [his work] with [Employer 1]. The Tribunal does not accept that the applicant’s father-in-law made threats to him, threatened to inform the [Authority A] in Iran that he was refusing to assist the regime or that the applicant’s father-in-law was involved in a series of meetings with the applicant and two men. The Tribunal does not accept that the applicant’s father-in-law threatened him with prosecution by [Judge A] as he claimed at hearing or that two men at the Iranian Embassy threatened him with prosecution by [Judge A] as he claimed at the Department interview. The Tribunal does not accept that the applicant gave two men at a meeting any information about [two specified countries] or any other countries as he claims. The Tribunal finds that any contact the applicant and his brother have had from the Iranian Embassy since arriving in Australia is because of [Ms A’s] contact with the Embassy around the international abduction of the applicant children and not because of the applicant’s claimed reasons for seeking protection.
The Tribunal does not accept that the applicant refused to [redirect parcels] or that his wife and children were threatened as a result, on the basis it does not accept as credible his stated reasons for having left [Country 1] and does not accept as plausible that, if credible threats had been made against [Ms A] to whom the applicant was still married and not yet separated, he would leave [Ms A] in [Country 1] when he left [there].
While the Tribunal is prepared to accept that the applicant may have been spoken to by members of [Authority A] in 2008 or 2009, it does not accept that the applicant was of any ongoing interest to the Iranian [Authority A] or that [Authority A] or the Iranian Embassy spoke to the applicant again in 2016 and reminded him of the discussion he had had with them in 2008 or 2009. Similarly, while the Tribunal accepts that [Worksite 1] was closed in September 2016 due to [a security threat], it does not accept that the closure of the [worksite] arose as a result of the applicant having a discussion with members of Hezbollah or anyone else.
The Tribunal has had regard to the large number of general and media reports about the situation in Iran, submitted by the applicant to the Tribunal. The Tribunal accepts that there is arms smuggling in the middle east, there are concerns about terrorism in Iran, that Iran utilises the death penalty, that Iran has poor prison conditions, that there are international concerns about the human rights situation for women in Iran and that Iran has had sanctions imposed on it. However, the Tribunal does not accept that any of these matters mean the applicant is personally at risk of serious harm if he returns to Iran, now or in the reasonably foreseeable future.
The Tribunal accepts that, if he returns to Iran, the applicant is a separated father of three who has lived and worked in [Country 1] on a long-term basis. He has completed high school and military service in Iran and has held long-term senior positions with [Employer 1] while working in [Country 1]. He has [specified family members] currently residing in Shiraz. The Tribunal accepts that the applicant sought sleeping pills from his GP in 2017 but notes that he does not claim to be currently experiencing mental health issues or fear returning to Iran for this reason.
The applicant’s representative has noted the most recent DFAT report for Iran relating to the condition for returnees, which states the following:[1]
Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. 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. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.
DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. 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.
[1] DFAT Country Information Report Iran, 14 April 2020 at 2.27 – 5.31.

The Tribunal finds that, if he returns to Iran now or in the reasonably foreseeable future, the applicant may face questioning at the airport about the circumstances in which he left [Country 1]. Because the Tribunal does not accept that the applicant came to the attention of the Iranian Embassy in [Country 1], the Tribunal does not accept that the applicant would be of any interest to Iranian authorities upon return to Iran.
The country information, set out above, indicates that returnees generally have the most difficulty reintegrating economically and finding meaningful employment. The Tribunal finds that the applicant has worked in a senior position in [Country 1], that he has found employment in Australia and that he has siblings residing in Iran. The Tribunal is not satisfied the applicant faces a real chance of serious harm upon return to Iran, as a returnee to Iran or for any other reason. The Tribunal is not satisfied that the applicant is owed protection under s.36(2)(a).
Having considered the complementary protection criteria, the Tribunal notes that section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
For the same reasons as those set out above, the Tribunal finds that there is not a real risk the applicant faces significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran.
The applicant did not raise protection concerns on behalf of the applicant children. However, the Tribunal notes that the applicant children have been included in both parents’ protection applications since their separation. The Tribunal has also heard and decided the separate application relating to [Ms A] and the applicant children and, in that decision, found the applicant children to be owed protection under s.36(2)(a). The Tribunal finds that the applicant is a member of the same family unit as the applicant children for the purposes of s.36(2)(b) and that s.91WB does not prevent the granting of a visa to the applicant. It follows that the applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)That the second, third and fourth named applicants satisfy s.36(2)(a) of the Migration Act; and
(ii)That the primary review applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicant children.
Tamara Hamilton-Noy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1865

28 April 2022

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