1804814 (Refugee)

1804814 (Refugee) [2023] AATA 2839 (1 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1804814
COUNTRY OF REFERENCE:                   Iran
MEMBER:Wayne Pennell
DATE:1 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies section 36(2)(a) of the Migration Act 1958.

Statement made on 01 June 2023 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Iran – religion – Bahai convert – imputed political opinion – involvement with Ahwaz Arab People’s Democratic Popular Front (AAPDPF) – detained and interrogated – received court summons – mental health condition – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The Delegate’s decision was provided to the Applicant on 30 January 2018.
The Applicant who claims to be a citizen of Iran applied for a subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’).[2] The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Iran, there was a real risk he would suffer significant harm. Nor was the Delegate satisfied that the Applicant was a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[4] The Applicant filed an application with the Tribunal for a review of the Delegate’s decision.[5] Accompanying that application was a copy of the Delegate’s decision.
[2]The Applicants’ application was received by the Department of Home Affairs on 30 September 2016.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
[5]The Applicants’ application was filed on 23 February 2018.
This application has undergone significant delays because of the Applicant’s health. Originally, the review hearing for his application was scheduled for 12 November 2021, and then rescheduled to 22 March 2022. A medical certificate was provided by the Applicant suggesting that he was not physically or mentally able to participate in the hearing and that a postponement was recommended for a period of five to six months. At that time, the Applicant was consulting with a specialist regarding the future management of his medical condition and possible surgery. The Applicant was also being assessed by a pain medicine specialist and was undertaking regular reviews. The Tribunal notes that following the postponement, The Applicant did not provide any further information in regard to his ongoing medical status until just before the rescheduling of the review hearing.
At a subsequent time, the Applicant was advised that his application had been re-allocated to another Tribunal member. Initially, the email containing that advice bounced back and it failed to deliver to his nominated email address.
Approximately a week later,[6] the Tribunal wrote to the Applicant advising him that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone. He was invited to give oral evidence and present arguments at a review hearing for his application which was scheduled for 8 March 2023. That letter was dispatched by registered mail to the Applicant’s nominated residential address and the Tribunal later received confirmation from Australia Post that the letter was successfully delivered to him.[7]
[6]On 27 January 2023.
[7]On 21 February 2023.
Four days prior to the scheduled hearing,[8] the Applicant sent to the Tribunal an email advising of the particulars of his new email address. However, it was noted by the Tribunal that he had not responded in respect to whether he would be appearing at the scheduled review hearing, however he did attend to the scheduled review hearing on 8 March 2023 and participated in the hearing with the assistance of an interpreter. He was also accompanied by his former wife who told the Tribunal that the Applicant was experiencing a decline in his mental health, in particular his cognitive capacity.
[8]On 4 March 2023.
In consideration of that information, the Tribunal postponed the hearing again. However, in doing so, the postponement was sufficiently long enough for the Applicant to consult with and seek advice from a migration agent or legal practitioner, along with consulting with a suitably qualified medical practitioner who could provide evidence to the Tribunal in regard to the suggested cognitive capacity issues he experienced. He was also asked to provide an updated statutory declaration to the Tribunal in regard to his present circumstances and the claims he relies upon. Having regard to the principle of procedural fairness, the Tribunal postponed the review hearing until 29 May 2023. This additional time would be beneficial to the Applicant and provided him with a further opportunity to prepare for the hearing, and obtain professional advice about his case, as well as an appropriate medical report in regard to his cognitive capacity.
Prior to the re-scheduled review hearing, the Applicant sent an email to the Tribunal which contained two photographs of a medical report from his GP. That medical report suggests that the Applicant has been prescribed a significant number of different types of medications. The report also provided:
Active past history
Major depressive disorder difficulties to concentrate, feeling down – uncertainty re his visa (has been in Australia for 12yrs) has been affecting his mental health, seen Psychiatrist
It was noted by the Tribunal that the Applicant provided no additional evidence about his claimed cognitive capacity or mental health issues, and nor was any updating statutory declaration filed with the Tribunal. The only additional material he provided to the Tribunal was a two page document from his doctor (‘GP’) which appears to be a print out from his medical file held by his GP.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] That is, the Applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]
[10]Migration Act1958 (Cth), s 36(2)(a).
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.[11] 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.[12]
[11]Migration Act1958 (Cth), s 5H(1)(a).
[12]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[13] 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 the Act, which are extracted in the attachment to this decision.[14]
[13]Migration Act 1958 (Cth), s 5J(1).
[14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[16] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[17]
[15]Migration Act 1958 (Cth), s 36(2)(a).
[16]Migration Act 1958 (Cth), s 36(2)(aa).
[17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]
[18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]
[19]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The Applicant claims to be a citizen of Iran and he provided a copy of his passport to authenticate this claim. The Applicant’s original passport he used to travel out of Iran was destroyed prior to his arrival in Australia. He has since been issued with a new passport by the Iranian Consulate in Canberra.
The Tribunal accepts that the passport adequately confirms his identity[20] and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Iran is the Applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21]
[20]Passport issued on [date] 2021.
[21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Therefore, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country and the Tribunal finds that he is not excluded from Australia’s protection obligations.[22]
[22]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[23] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[23]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Iran, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[24]
[24]Migration Act 1958 (Cth), s 36(2).
The mere fact that the Applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or that it is for the reason claimed. Similarly, because the Applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the Applicant’s case for him. It is his responsibility to specify all particulars of his 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.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicant.[26]
[25]Migration Act 1958 (Cth), s 5AAA.
[26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANT’S CLAIMS AND THE EVIDENCE
The Applicant was born in Iran. He, along with his wife and [number] small children, travelled by boat to Australia, arriving at Christmas Island [in] November 2011. The Tribunal is aware that the Applicant’s former wife has been granted a Protection visa. The Tribunal has previously made a decision in regard to their children and remitted the matter back to the Department for consideration that the children satisfied section 36(2)(b) of the Act.[27]
[27] Decision of Member Kent,
After arriving in Australia, the Applicant made a request for a protection obligation determination and was subsequently interviewed by the Department.[28] He was found not to be a refugee and his matter was referred for further assessment.[29] Subsequently, a routine report released by the Department’s website inadvertently allowed access to personal information about people who were in immigration detention. The Applicant was one of those people able to be identified.
[28]On 23 February 2012.
[29]By the Independent Assessment Authority.
An assessment was undertaken of that data breach and ultimately it was established that the data breach did not create a real chance of, or any risk of, harm for the Applicant. By this time, it was almost four years since he had arrived in Australia.
Subsequently, the Applicant was allowed to make an application for protection. That application was lodged on 30 September 2016 and after assessing the claims he made, the Delegate refused the application.[30]
[30]Delegate’s decision to refuse the application was on 30 January 2018.
To support his claims outlined in his application, the Applicant has in the past provided three statutory declarations and taken part in an interview with the Department. The Tribunal notes that the first of his three statutory declarations were completed on 19 February 2012. Within that statutory declaration he claimed that he had some cousins who for many years had been members of the Ahwaz Arab People’s Democratic Popular Front (‘AAPDPF’), and the aim of that organisation was to work towards reclaiming Arab land. His cousins were responsible for publishing news about the cause and the organisation.
He went on to claim that about once a month his cousins visited his house where they discussed matters relating to the organisation. They only used his house because they apparently considered it safer for them. The Applicant was happy for those gatherings to take place at his residence, but he did not personally attend the gatherings because he was not involved with the organisation. He said that he focused on his [work], he did not involve himself in political matters and when his cousins visited, he went to the house belonging to his wife’s family.
The Applicant claimed that in around August 2010, he was approached by about six or seven members of the Basiji outside a Mosque. At that time, he was wearing a tradition Arabic costume (Disdasha). He was asked by the Basiji officers why he was dressed like a Wahabi. He claimed that he was then beaten by some of the officers with batons and was struck a number of times in the back of the head and around his body. The officers then blindfolded and handcuffed him and put him into a car. He was taken to their office where they subjected him to degrading behaviour by making him clean their shoes. They also cut the bottom off his Disdasha and taunted him that he was dressed like a woman.
The Applicant claimed that after that had happened to him, although he did not join the AAPDPF, he became more supportive of their cause. He provided the organisation money and continued to allow his house to be used for their meetings, and he loaned his car to his cousins when they needed it.
During the period leading up to when the Applicant travelled to Australia, the Basiji raided a AAPDPF meeting and arrested one of his cousins. On that occasion, the meeting was not held at the Applicant’s house. The Applicant later learnt that his cousin was taken to the Basiji office and interrogated where he provided many names to the Basiji of people involved in, or connected with the organisation. The Applicant was one of the people identified by his cousin. When the Applicant learnt about his cousin’s arrest, he went home and gathered up everything in connection with the AAPDPF and burned it.
He claimed that two or three days later, he left his house and waiting outside were four men who identified themselves as being part of an intelligence organisation connected to the Basiji. He was taken by car to their office where he was interrogated about the organisation. During that interrogation he was stripped down to his underwear and threatened with imprisonment and then beaten with batons. His hands were cuffed and he was suspended from a hook hanging from the ceiling for what he thought was about five to six hours. At other times, he had an electric probe stuck under his testicles
He claimed that the interrogators eventually took him down from the ceiling hook and he was put into a prison cell where he stayed for 45 days. He had no contact with the outside world during that time.
Eventually his father managed to find out where he was being held in prison and engaged a lawyer for help. A bribe was later paid for the Applicant’s release. At a later time, his lawyer was served with a court summons requiring the Applicant to attend court within 20 days to answer a charge relating to his involvement in the political movement of AAPDPF. The Applicant said that he did not attend court within the 20 days and he became unsure about his future.

He said that at around the beginning of October 2011, he was at his house with his wife. His children were at school. Someone claiming to be from the court called his house on the intercom. The Applicant suspected that they were the Basiji. He then fled out the back door of his house and escaped, He caught a taxi to a friend’s house. He later learnt that when the Basiji went looking for him, his wife left the house and went to her parent’s home.
He knew his life was in danger, so he contacted his wife from his friend’s house and arranged for her to meet him at his friend’s house with their children and their belongings. He claimed his friend assisted with the purchase of the airline tickets to [Country 1]. When they got to [Country 1], he paid a people smuggler to get him and his family to Australia. Their passports were destroyed by the smuggler.
The Applicant claimed that he cannot return to Iran as he fears that he will be arrested and his life will be at risk, and he would be killed. Because he did not attend the court to answer questions about his political involvement means, this meant that he would remain wanted by the Iranian authorities. Because the authorities had already tortured him before, he fears that they will do it again.
The Applicant also claimed that he could not relocate within Iran as the authorities will locate him no matter where he went inside Iran. He also fears that if he was to return to Iran, because he was a failed asylum seeker, the situation for him would be far worse.
COUNTRY INFORMATION
The Applicant has to its availability credible and reliable country information in relation to Iran, including information relating to religion, how persons with mental health are assessed and treated, and issues relating to those persons returning to Iran who have sought asylum elsewhere.
Returnees
The DFAT report[31] outlined that millions of Iranians travel into and out of Iran each year without difficulty. Iranian nationals are required to pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport upon departure. If an Iranian citizen is employed in fields considered sensitive such as the Iran Atomic Energy Organisation, an exit permit for foreign travel is required. An exit permit is also required for all males between the ages of 18 to 30 who had not completed their military service.
[31]The DFAT Country Information Report, Iran, 14 April 2020, pages 69 to 70, paragraphs 5.23 to 5.26.
In some cases, citizens require special permission to obtain a passport. This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. It does not appear that any of those conditions were applicable to the Applicant when he and his family departed Iran.
There have been occasions when the Iranian authorities have imposed travel bans on some Iranian citizens. Those reasons have included security concerns, financial debts, outstanding taxes, and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans; and civil and political activists may also be subjected to travel bans. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
The DFAT report[32] went on to explain that Iran has a global and longstanding policy of not accepting involuntary returns and historically, Iran has refused to issue temporary travel documents 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 temporary travel document can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
[32]The DFAT Country Information Report, Iran, 14 April 2020, page 70, paragraphs 5.27 to 5.31.
The DFAT considers that Iranian authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a temporary travel document are questioned by the immigration police about the circumstances of their departure and why they are travelling on a temporary travel document. 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. A well-placed source for the DFAT indicated that arrest and mistreatment are not common during this process and the 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 the DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.[33]
[33]The DFAT Country Information Report, Iran, 14 April 2020, page 70, paragraphs 5.29.
However, in respect to the Applicant’s claims, he suggests that he is a wanted person by the authorities and if that claim is accepted, then the Tribunal should find that the risk of him be apprehended, questioned and detained is far greater.
It was the assessment of the DFAT that, unless a person was the subject of adverse official attention prior to departing Iran, for example, 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.
The Tribunal identifies that it was the DFAT’s assessment that unless a person was the subject of adverse official attention prior to departing Iran, for example, their political activism, returnees are unlikely to attract attention from the authorities. These people would face a low risk of monitoring, mistreatment, or other forms of official discrimination. However, the Applicant’s claims are that he was a person of interest to the Iranian authorities. If his claims are accepted, then any prudent assessment of the country information and the claims would conclude that there was a risk of harm to the Applicant should he return to Iran. Discussion on this point and the Tribunal’s findings are discussed later in these reasons.
Mental health
Various mental disorders are prevalent in Iran. The mental health difficulties experienced by Iranians varies depending on the type of disorder. Overall, mental health maintains a vital challenge for Iran with 4.3 million Iranians suffering from depression. That equates to around five percent of the Iranian population, compared to almost three and a half percent of the global population suffering from depression.[34]
[34]The State of Mental Health in Iran, Borgen Project, James Van Bramer, 24 March 2021, >
In Iran, inflation, poverty, a sense of hopelessness, and suicide rates are all on the rise. According to the official Statistics Centre of Iran, one out of every three Iranian citizens grapples with some form of mental disorder, suicides have increased and leapt by twenty-nine percent in the early months of the COVID pandemic compared with a year earlier, with the annual trend remaining upwards. Iranians have also shown their anger at the government’s failure to stem the country’s economic slide, taking to the streets to join protests that are sometimes violently put down, leaving hundreds dead since 2018.[35]
[35]‘Mental chaos’ in Iran: Is government helping people, or harming?, The Christian Science Mentor, Scott Peterson, 12 January 2022, >
The World Health Organisation has warned of an increase in the incidence of mental disorders around the world, which stems from political turmoil, continuous wave of violence, and frequent changes in the social texture of countries, with mental disorders and substance abuse being considered one of the most important health problems in the world. According to mental health research in 2008, the prevalence of mental disorders in Iran’s population over the age of 15 years has been estimated to be twenty-one percent throughout the country. That is up from seventeen per cent recorded in 2001. By 2011, the prevalence of mental disorders in Iran was twenty-three percent.
The DFAT report provides that the need for mental health services in Iran is significant. The availability of mental health services has improved, including in rural areas, but ongoing social stigma attached to mental illness discourages people from seeking, or persisting with, professional treatment. A local source told DFAT that private mental health services are available, particularly in Tehran, but are prohibitive financially for the average person. A small number of NGOs work in the field of mental health, but these outfits are generally under-resourced.[36]
[36]The DFAT Country Information Report, Iran, 14 April 2020, pages 15 to 16, paragraphs 2.24 to 2.25.
The Applicant’s claim is that he suffers from a mental health condition, described by his treating doctor as depression, although there is anecdotal evidence to suggest that the Applicant has in the past consulted a psychiatrist. The Applicant has experienced a depressive illness for several years and when carefully considering the Applicant’s evidence about his mental health, the Tribunal accepts that he suffers from depression and that he is medicated to assist him to combat the symptoms and to treat his condition.
In concluding on this topic, the Tribunal accepts that the Applicant suffers from a mental health condition. The Tribunal also finds that should the Tribunal return to Iran, he would not receive the adequate treatment required to assess, monitor and treat his current mental health and depressive condition and illness.
Religion
The DFAT report provides that over 99 per cent of Iranians are Muslim, of whom 90 to 95 per cent are estimated to be Shi’a and five to 10 per cent Sunni. Small religious minority communities including Bahai’s, Christians, Zoroastrians, Jews and Sabean-Mandaeans make up the remainder. The DFAT report goes on to outline that:
Of Iran’s religious minorities, only Christians, Zoroastrians and Jews (excluding converts) enjoy legal recognition and, in turn, the ability to worship openly. Adherents of non-recognised religions are considered Muslim and are prohibited from expressing their faiths publicly. Religious minority communities, both recognised and non-recognised, have shrunk considerably since 1979, with many choosing to leave Iran after the Islamic Revolution.[37]
Iran is a theocracy with Islamic beliefs and customs enshrined in law. Shi’a Islam is the official state religion. Article 4 of the constitution requires that all laws and regulations be based on (Shi’a) Islamic criteria. Legislation and government policy heavily favour the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and recognised religious minorities. Non-Shi’a Muslims, for example, are constitutionally-barred from serving as Supreme Leader or as members of the Guardian Council, the Assembly of Experts and the Expediency Council. Adherents of non-recognised religions, particularly Baha’is, face widespread official and societal discrimination. According to a July 2019 survey on religious restrictions conducted by the Pew Research Center, Iran ranks among the top 10 countries in the world for laws and policies restricting religious freedom.[38]
Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.[39]
Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.[40]
While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytisation.[41]
Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.[42]
DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.[43]
[37]The DFAT Country Information Report dated 14 April 2020, page 28, paragraph 3.27.
[38]The DFAT Country Information Report dated 14 April 2020, page 28, paragraph 3.28.
[39]The DFAT Country Information Report dated 14 April 2020, page 36, paragraph 3.73.
[40]The DFAT Country Information Report dated 14 April 2020, page 37, paragraph 3.74
[41]The DFAT Country Information Report dated 14 April 2020, page 37, paragraph 3.75.
[42]The DFAT Country Information Report dated 14 April 2020, page 37, paragraph 3.76.
[43]The DFAT Country Information Report dated 14 April 2020, page 37, paragraph 3.77.
The Tribunal notes that in his previous statutory declarations, the Applicant said that he was an Arab and his religion was Muslim Shi’a. His evidence to the Tribunal is that his wife’s religion is Bahai. The Tribunal accepts that her religion is Bahai.
When the topic of his religion was discussed with the Applicant at the review hearing, it was his evidence that he initially told the Department’s officer that he was a Shi’a during his arrival interview and his interview by the Delegate in regard to his Protection visa application. He said that at the time of his arrival interview, he was not represented and not sure what to say about his religion. The Tribunal accepts that it can be expected that newly arrived asylum seekers would be very apprehensive given the surroundings and the environment they would have been experiencing at that time.
The Tribunal also accepts that the Applicant’s interview with the Delegate in regard to his claims within the Protection visa application was carried out over the telephone. Although aided by an interpreter, the Applicant at that time was experiencing a depressive condition which would have impacted upon his interpretation of the questions asked and the responses he made to the questions.
Although the Applicant does not claim that he was a devoted Muslim Shi’a, it is now his claim that he had converted away from the Shi’a religion during his marriage to his wife. The Tribunal acknowledges that he did not raise this claim at an earlier point, however, is satisfied that he has a reasonable excuse given the mental health issues he suffers. The Tribunal accepts that he is a convert to Bahai and finds that when carefully considering the country information in respect to the risks posed to Muslim Shi’as who convert Away from that religion, there is a significant risk to the Applicant if he was to return to Iran.
REFUGEE FINDINGS
Australia has a demonstrated commitment to granting protection visas to those people of whom Australia has protection obligations. That commitment is derived from the multiple international instruments of which Australia is a signatory, including the UN Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention.
The Applicant claims he left Iran to escape the threats of harm from the authorities because of his connection with a political organisation, and he had been summoned to court. He also claimed that because he did not attend court, he is a wanted person in Iran. The Applicant also claimed that he was held in detention for a period of 45 days during which he was subjected to physical abuse and degrading treatment.
The Tribunal had the benefit of the Applicant’s personal appearance at the review hearing. The Tribunal was able to assess his responses to the various questions asked of him, in particular when asked if he had read any of his previous three statutory declarations made in 2012, 2016 and 2017. His evidence was that he cannot read English and those documents were compiled from the information he provided to his lawyers. He had not read the documents or had anyone else read the contents back to him. What was obvious to the Tribunal was that his first statutory declaration was made in February 2012, which is over 11 years ago.
When he gave his evidence about what had occurred to him when he lived in Iran during the period leading up to his departure, the Tribunal observed that his recollection of those events was very similar to the contents of his statutory declaration. The Tribunal acknowledges that although there were some minor discrepancies in the facts which differed from his evidence to those outlined in the 2012 statutory declaration, that is expected given the passage of the significant amount of time and the Applicant’s mental health. When considering all of those features, the Tribunal accepts his evidence and finds that he was subjected to the harm as he described and that he is at substantial risk of further harm should he return to Iran.

In conclusion, when carefully assessing the facts, circumstances, features and available evidence, and when weighing all of that against the available country information, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm, including cruel or inhuman treatment or punishment or degrading treatment or punishment.
For those reasons given above, the Tribunal finds that the Applicant meets the definition of a refugee as per the criteria set out in the Act.[44]
[44]Migration Act 1958 (Cth), s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies section 36(2)(a) of the Act.
Wayne Pennell

Senior Member
ATTACHMENT - Extract from Migration Act 1958 (Cth)
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.
…

[2023] AATA 2839

1 June 2023

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