1812188 (Refugee)

[2020] AATA 4845

1812188 (Refugee) [2020] AATA 4845 (2 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1812188

COUNTRY OF REFERENCE:                   Iran

MEMBER:Denis Dragovic

DATE:2 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 2 September 2020 at 8:01am

CATCHWORDS

REFUGEE – protection visa – Iran – Federal Circuit Court remittal – religion – alleged apostasy – imputed political opinion – opposition to the government – artist – plans for exhibition venue – land development – fear of arrest – physical assault – education – exit procedures – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 425
Migration Regulations 1994, Schedule 2; rr 1.03, 1.05, 1.12

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants claim to be citizens of Iran. The tribunal was provided copies of the first named applicants’ workshop ID card which is produced by [a named business organisation in] Tehran; an unspecified Iranian identity card; and numerous company documents in his name. As the applicant’s identity is not in dispute, the documents align with his claimed identity and the applicant and his family speak fluent Persian, I find that the applicants are citizens of Iran and as such Iran is the country of reference for the purposes of the Refugee Convention and receiving country for the purposes of complementary protection.

3. The applicants applied for the visas on 16 July 2013 and the delegate refused to grant the visas on 19 November 2014. The applicants appealed to the Tribunal and a decision was made to affirm the delegate’s decision on the 20 June 2016. The case is before the Tribunal because the decision by the Tribunal was appealed and subsequently remitted by consent. The court order dated [in] April 2018 records that,

   The first respondent concedes that the mistranslations provided by the interpreter at the hearing [in] June 2016 were frequent, continuous and to a degree such that the applicants were not afforded a meaningful hearing in accordance with the requirements of s 425 of the Migration Act 1958 (Cth).

   The first respondent concedes that the inaccuracies in interpretation, the interpreter’s own admission that she failed to understand the first applicant, and the interpreter’s insertion of additional words in her translation, considered cumulatively, affected the tribunal’s overall impression of the first applicant’s claims and caused the tribunal’s process to miscarry, resulting in a denial of procedural fairness to the applicants.

4. Due to the circumstances of the court remittal I chose not to review the decision record of the previous Tribunal member and similarly not to listen to the recording as it could have distracted my understanding of the applicant’s claims. This was discussed with the representative and the proposed approach was received positively.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The applicants appeared before the Tribunal on the 17 June, 2 July and 13 July 2020 to give evidence and present arguments. With the consent of the representative the hearing was conducted remotely using Microsoft Teams. The applicants appeared from their home and the representative from her office. At the outset the applicant confirmed that the room was quiet and private. The connection throughout the hearing was of high quality. The hearing was conducted according to the guidelines of the Special Measures Practice Direction of 29 April 2020.

7. In summary, the first named applicant (‘the applicant’) is [an age]-year-old Iranian who claims that he has a profile in Tehran such that he fears for his safety. He claims that local powerbrokers have threatened and harmed him to leverage his influence in his community in an effort to obtain financial gain from the development of a large piece of prime real estate. The applicant has no intention of complying with their demands. The applicant fears that these powerful figures will use his lack of support for the religious governance structures of Iran and past actions including protesting and speaking out against the government as leverage to win his support.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. 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 a protection 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 the applicant 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’).

12. 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.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Evidence and Findings of Fact

14. I found the applicant and his family to be credible witnesses. The applicant’s testimony was delivered across over ten hours of hearings. It was consistent with earlier submissions to the Department and previously constituted Tribunal. The applicant provided a high level of detail that was logically coherent when tested against country information and had internal consistency. While there were some issues with his evidence, which I have noted in some cases, overall, I found the applicant to be credible. I accept that the applicant lived the life that he described over the course of three hearings and through the submissions as described below.

    The applicant’s early life and issues with the government

15. The applicant claims that his father was a member of [a named political] party. He recalls that his father [suffered a disability] [while] the applicant was still a child. He claims that doctors said that the [condition] arose from repeated beatings he had endured through his life. The applicant claimed that his father had first been beaten by the [Party] as he had decided to leave the party, then the Shah’s people and then from the ‘religious people’.

16. The applicant claimed that his father was well educated about the history of Islam and Islamic philosophy. He claimed that he had a lot of followers who would sit and listen to him and he would often debate with them. As an example, the applicant explained how his father had told him that he had once been invited to Qom where he was involved in a debate following which he was attacked by the people because of the things that he had said. His father passed away in [specified year] ([year] in the Gregorian calendar).

17. The applicant believes that being the son of his father places him at risk because the relationship is a confirmation of his apostasy as his father was accused of apostasy. He recalled that after the revolution a lot of people were killed because of their thoughts and beliefs. His father was not killed, he believes, because he had [his disability] and the regime would have thought that he would not be able to have any influence.

18. The applicant explained that the first time he himself had been beaten was when he was thirteen years old, during the Shah’s regime and before the Islamic revolution. He explained that the incident began when he asked his father to recommend a book to learn about what his father had been debating. So, his father recommended that he read the Quran. He was surprised that his father made such a recommendation, but nevertheless, he entered a mosque for the first time wanting to learn how to read the Quran in Arabic as he didn’t speak the language. In one of the classes the teacher was speaking about the justice of God. The applicant began to ask some questions that went against his teaching. The applicant claims that the teacher became angry and hit him and others followed by beating him and then throwing him out of the mosque. He returned home and told his father about the beating. The applicant claims that his father then took him to the police station to make a report. The next day the police asked them to return to the station as they had arrested the teacher. The police asked the teacher why he had beaten the child, to which the teacher said that it was because the applicant didn’t understand what was being taught, so the officer slapped the teacher. In the applicant’s recollection of events the teacher then asked why he was being hit, to which the officer responded that it was because he didn’t understand. The applicant clams that the teacher subsequently became a part of the revolution and that he had always labelled him and his father as anti-revolutionary.

19. The applicant has claimed that he was unable to enter university because he did not pass the religious component of the entry test (konkour). Country information supports the applicant’s claims of a religious component:

    In the early years of postrevolutionary Iran, the purpose of testing shifted from being just a mere test of knowledge to an instrument to ensure the “Islamization of universities,” aimed at admitting students committed to the ideology of the revolution. The university entrance exam judged admissions candidates not only by their academic test score but also by their social and political background and loyalty to the Islamic government.[1]

    [1] Kamyab, S. (2015). The University Entrance Exam Crisis in Iran. International Higher Education, (51). >

    The applicant claims that he was accused of sharing military information with rebel Kurds during his military service. During his military service the applicant was found to be socialising with Kurdish people which led the Protection and Information Division to question whether he was providing them with information. The applicant believes that this has been recorded against him although he was not prosecuted.

20. The applicant claims that he declined an offer to join the Sepah, a branch of Iran’s military services. I asked why they would make an offer to join the Sepah whose job it is to maintain the integrity of the Islamic system if he had been accused of questionable conduct? He explained that the offer was made during the Iran-Iraq war. He claims that during that time he was asked to transfer to the Sepah from the Army, but he refused. He believes that they wanted him to take part in military operations claiming that they probably just wanted him to be killed or that he was dispensable. He fears that there is a record of his refusal on his file.

21. The applicant claims that he has faced repeated refusals to access a letter of service from the battalion in which he served during the Iran-Iraq war. He explained that there were times that such letters were required. He said two of his friends were able to obtain passports without the letter while two others required it. He explained that a lot of young men were scared to join the military during the war years and avoided it, so such a letter was needed to show that they had served during the war.

22. The applicant’s evidence on this matter is mixed. At some instances he refers to the need to obtain a confirmation of service record, which at the hearing he clarified he had obtained, but then said that it was a letter from the battalion that he hadn’t received. Yet in a statutory declaration dated 10 June 2020 he stated that he was denied by the Public Conscription Office and did not mention the battalion. While I accept that the applicant had problems accessing a passport in the years immediately after his service in the Iran-Iraq war I do not accept that this continued to be an issue subsequently. Nor do I accept that the applicant had faced any other limitations arising from not having being able to access the battalion letter.

23. The applicant claims that in the mid-1990s personnel from a security agency interrogated him as he had said some things about the then President, Rafsanjani. They asked him about what he had said. He claims that he was just slapped, but not beaten.

24. The applicant claims that he has participated in 60-70 demonstrations. The last one he participated in was during the presidency of Ahmadinejad in 2009. I asked if something happened after any of those protests. He said that usually people who have a high profile would only be questioned, while the people who they do not know, the average Iranian, would be arrested and beaten. He claimed that security personnel came to his workshop multiple times and showed photos of him present at demonstrations warning and threatening him that he was not taking a good social stance. In one protest he was taken to a security van at which point they blamed him for some of the protests and accused him of having brought people to it. They beat him in that instance. He was accused of being a traitor. He was later let go.

25. I accept the applicant’s narration of his father’s life and his own life as described above. I accept that his father was a [political] party member and vocal against Islamic scholars. I accept that the applicant is tarnished by being the son of his father and that this is known to authorities. I also accept that the applicant himself is known to the authorities as being against the regime through his participation in protests and his speeches.

    The applicant’s [artistic] and community activity

26. The applicant claims to have been very active in the arts from a young age. He claims to have become interested in [a specific art form] under his father. He told the Tribunal that the first [work he produced] was when he was [age] years old. At the same time, he was also reading poems of famous poets attending unregistered classes on poetry.

27. Over time the applicant claims to have taken on an active role among the literary set. He explained that they weren’t a single group led by an individual but rather a coming together through private underground gatherings of likeminded individuals.

28. But there were some sessions that were organised through registered organisations. He gave the example of the ‘[literary group]’. They would receive financial assistance from the government to run the festival. He said that he was on the [organising team] of the ‘[literary group]’ a few times but about 15 years ago he claims to have been expelled from the group. The reason he was expelled, he explained, was because he wrote a long critical poem about [a political topic] in Iran. He recalled that he read the poem in [a venue], estimating that a thousand people were present, and a lot of people were cheering him on. He lamented that a lot of the poets who write poems in Persian are not artists, but rather they have] just learned how to play with words. His view is that a real artist should talk about the pain of society. A poet, he claimed, is a critic of his society. Despite being expelled, nothing else happened to him but he said that it confirmed his opposition to the regime.

29. The applicant’s first [written work] was about [Leader A]. He claims to have interviewed [number] people who exited a mosque asking them about [Leader A] and then concluded that the [reports] about [Leader A] is [deleted]. At some later stage, someone who was working at [State Agency 1, details deleted], told him about [his written work], mentioning [it] by name. The applicant claimed that the bureaucrat had told him that the person who had written it was against the people and against [Leader A]. The applicant claims that he knew this bureaucrat as he had done some [work] for the [agency]. He claims that while he was living in Iran only very close friends knew that he had written that [work].

30. The applicant claims that in [year] he then penned a second [written work] anonymously, [name and meaning deleted]. The applicant described the [work] as a fictional [piece] revolving around the religious-political culture in Iran and included discussing dissident views. He wrote it as a fictional [work] so that he could explain the views expressed in the [work] as not being his own if he was ever caught. He claims that he shared the [work] with a friend who then made ten copies of it and distributed them. He claimed that three years after the copies were distributed a man gave him a copy and recommended that he read it not knowing that he was the author. The applicant believes that more copies were made. He confirmed that no government official has approached him about this [work]. He claims to know that the copies were well read as he had received copies through others and some of them were so well worn that parts were not legible. He said that in Iran people are interested in reading [works] distributed in this way because people like to do what they are forbidden to do. He believes that his friends have told others that he has written the [work] and as such he suspects that the intelligence services know this. He believes that this is now known because his friends believe he is safe in Australia and so they told others about who the author was.

31. The applicant claimed that the clergy have financially exploited the leadership of their country. He claims that the actions taken have sapped people’s confidence and trust in them, and because of that the authorities need people like him who are trusted by others. He explained that when the [Artists Group 1], a group that represented [many other groups], was formed [who strongly] voted in favour of him being the head. Because of his standing among that group the government wanted his cooperation, but he never gave it.

1. Since arriving to Australia, the applicant has taken up posting on [social media]. The applicant claims to have written [works] with a political slant and shared them on [social media]. He mentioned one [work], written in a satirical style about Khamenei’s leadership and how he became a leader of the country. His other [social media] posts are claimed to be written in a satirical style ridiculing and criticising the supreme leader and his regime. The applicant claims that he had pondered on the internet why the situation of workers should be so poor, but the clergy live in luxury, even though they claim to be living as the prophet did. The applicant provided to the Tribunal copies of some of the posts he had made on [social media].

2. He claimed to have participated in a protest [in Australia] held about a year ago when the Iranian government had killed about a thousand people. The second named applicant had joined him.

3. The applicant claimed to have been a member of [an industry group] since the late eighties or early nineties and subsequently the head of various cooperatives or unions. The applicant’s claims in this regard are difficult to pin down.

4. Evidence relating to his claimed roles includes the following:

   a.[Company 1] established [date] with the purpose of the company being to establish [an exhibition place and artistic events]. The members of the board include the applicant, [and other named persons].

   b.[Association 1] established [date] with the purpose of developing a [artistic exhibitions and stores]. The members of the board are the same as those listed in (a).

   c.In an undated and unsigned document produced in the format of a statutory declaration the applicant referred to himself as being the head of [an artistic group]

   d.The applicant has claimed to be the spokesperson of [number groups] which encompasses at least [number] people as described in an undated and unsigned document produced in the format of a statutory declaration

   e.He has claimed to be the head of [Artists Group 1] and the [Artists Group 2]

5. In an effort to clarify what role he held and what each of these groups do on the 10 August 2020 I wrote to the representative asking the following:

   The primary applicant has at various times claimed to be the head of [Association 1], [Artists Group 1], [Artists Group 2] and [another company]. Can the applicant provide a full account of each of the positions he held, the purpose or scope of the organisation, when it was established and a description of the other members (for example, were they representatives of other cooperatives, shareholders, family members etc).

6. In a response dated 24 August 2020 the representative provided the following information:

   The applicant was the [Office Bearer 1] of [Association 1] from 2006 to 2012 (a single [branch]) with approximately [number] members as at 2012.

   In addition the applicant was the [Office Bearer 1] of and Representative of the [Industry Group 1] between 2008 and 2012 a body (community institution without any financial support from any government organisation) that comprised [number of subgroups] classified in the [Industry Group 1] that had roughly [number] members and a much larger number of associated entities and individuals of approximately more than [number].

   In the management committee there were [several] people who held high position in the association and assisted me in the management of the associations. Eventually all these other persons resigned, I was the only one who did not resign. Other could not sustain more than a year due to work pressures there and concerns regarding our outspoken public opinion and profile.

   The goal of the Association was organising [exhibitions] and conferences and coordinating various groups to strive in pursuing the aim of the creation of [an exhibition place]. It was the representative voice of the members and often expressed opposition views.

7. The claims in this submission do not align with the evidence provided earlier. I accept that [Company 1] and [Association 1] are one and the same and that the different dates are the stages of establishing a company as the purpose and directors appear to be the same. As such I accept that the applicant established [Company 1] in 2011. Yet in the submission from August 2020 after seeking clarity on the applicant’s claims the representative’s submission simply adds further confusion by claiming that the applicant ran [Company 1] since 2006.

8. In the same submission he claims to be the representative of [Industry Group 1] which was not mentioned before by that name but the applicant did refer to the same characteristics of having [same number of subgroups] representing [number] people under the name of [Artists Group 1] and the [Artists Group 2]. According to the August 2020 submission the purpose of the Association is to pursue the creation of [an exhibition place]. This purpose, though, is the purpose of [Company 1] as described in the incorporation documents.

9. The applicant has repeatedly asserted the importance of the right words being used when providing evidence. This was exhibited during the hearing and formed the basis upon which the appeal was made for the previous Tribunal’s decision. In this instance it appears that the applicant’s inconsistency is more than just the translation of the words. It is vexing. In choosing which evidence I give greater weight to I take into consideration the documents submitted to the Tribunal which support the establishment of [Company 1] and accept their veracity, I discount the applicant’s evidence given through the representative in the most recent submission as it is inconsistent with earlier evidence and could have been mistranslated. As such I accept that the applicant has held representative and leadership roles among artists and craftsmen including with the specific aim of establishing an [exhibition place].

10. The applicant provided a considerable number of photos of [works] that he claimed he had made. He also provided videos of making some of them. The applicant provided a copy of his father’s [workshop] ID card which notes that it had been transferred to the applicant. In other documentation his work address is listed as ‘[street name]’ which the applicant had claimed was named after his family for the reason of having had [business] operations there for generations. In a video submitted to the Tribunal the applicant claimed that [his specified work] is prohibited in Islam. He submitted an article that supported this view. He claimed that he has sometimes received warnings that the job he does is against the Quran. But he notes that people still [create these products]. He said that recently a cleric said that making [them] is haram, buying [one] is prohibited and keeping [one] is prohibited. The applicant wryly noted that the government would not bother [his occupation] if they made [works] of Khomenei, instead they would get a medal. He explained that not all [his profession] [create this specific work]. [His profession] has a wide spectrum, [including specified varieties of works]. He claims that he does all of those and that is why he was at the top of [his profession] in Iran.

11. [Deleted].[2]  

    [2] ‘[Deleted.]

12. The applicant added that dictatorships are sensitive about art. The United Nations speak of art as an international language of feeling, that is why the [artistic] aspect of [his occupation] is under government surveillance because making [works] is a means of expressing dissent against a regime.

13. Based upon the documentation, photos and videos I accept that the applicant not only made all of the [works] he has claimed to have made but that he is not simply [in this occupation] but [an artist] as well. I also accept that the applicant is a poet and author of works that question the legitimacy of the regime and the religious structures.

14. I accept the applicant’s descriptions of his work, artistic and literary activities and his leadership roles as described above.

    The applicant’s dispute with the clergy

15. The applicant explained that [same number of subgroups] had chosen him as their representative. As their representative he had proposed a plan to build [an exhibition place] near [City 1] for about [number of artists]. The building of the [place] would require the commitment of the [artists] to this new location. The applicant was the one who would have engaged with them to mobilise their commitment. To help facilitate this he claimed that he had set up the [Artists Group 2]. He would meet with them on a monthly basis to report back on the progress. He claims that some suggested that he start collecting money from [artists] who would buy into the project and that this was a sign of the level of trust he held.

16. He explained that to get the necessary approvals and obtain the land from [a state agency], he had to submit an application to the [City 1] council and then give it to [a departments in] Tehran along with the government’s [industry agency]. He claims to have obtained all of the necessary approvals. Some of the correspondence between [Association 1] and the council was provided in submissions.

17. But the applicant claims that the clergy in the [City 1], led by [a named official], wanted to manage the project themselves. He claimed that by getting involved in such projects they could access loans and later cancel the project without paying the money but then from the stolen proceeds send their children to live in [specified countries].

18. The applicant claims that many times he wanted to resign from his position, but the [group] leaders didn’t agree nor did the clergy. The clergy didn’t want him to leave because finding someone who could get the support of 90% of the [groups] would be difficult. They wanted to use the trust he had amongst the people as a tool for their own ends. He believes that their approach was to threaten him so that he would cooperate. He claims that they offered him a factory with [amount of space] without paying any fee. But he told them that he was not for sale.

19. The applicant had engaged with the Supreme Leader’s office to obtain support for the project, which he claims he received. He explained that he did not have a copy of that letter nor did he see it as the process is that the letter is sealed. He was given it and told to take it to the city council. He did this to help speed up the administrative processes of obtaining the land for the project. But after he encountered challenges from the local clergy he once again went to the Supreme Leader’s office and again he received a letter, though he is unsure of the message it contained. He claims that following that second visit the pressure from the local clergy increased.

20. The type of pressure he faced included being beaten twice by those he described as ‘[group name]’. The applicant explained this group as being, ‘a group established after the war, in Tehran consisting of former army officers and intelligence agents, frequently employed by the office of the supreme leader and other religious organisations to covertly repress and control religious minorities and dissidents.’ (Submission dated 10 June 2020) He claims to have been beaten by the [group] in November 2012, having his top teeth broken and face badly swollen requiring him to go to hospital. He claims that they said, ‘this is a good lesson for you.’ He claimed that he was beaten again in January 2013 when he was returning home from work. He claims that the attackers told him, ‘if our leader lets us, we will kill you.’ At this time, he was trying to hand over the project to a construction company that had been selected to undertake the planning work for the new [exhibition place].

21. He also claims to have received phone calls threatening to kill him though he is unsure whether they are related to the land dispute or his speeches.

22. At one meeting related to the land where he claimed close to a thousand people attended he said that he was given a label of ‘thinking differently’ because he gave a speech that included criticism of the religious authorities along the lines of, at every stage of your life you need to get permission from the clergy but nowhere in the Koran does it state that it should be that way. At that meeting he was sworn at and claims that bad things were said to him.

23. The applicant claims that his land dispute became a dispute that entered the religious space. He claims that they told him that he needs to follow the instructions of the clergy as the intermediary between the people and the Ayatollah, in response he claims to have said that he is aware of the notion of taqlid (following) but that how they are applying it is not a part of the meaning. They then mentioned the concept of vilayet faqih, which is the theory underpinning the religious governance of the Islamic Republic of Iran. He in turn referenced the constitution of Iran (ss.107-112). Such questioning of the authority of the clergy, voiced openly, he believes put him on a collision course with them.

24. I asked the applicant how he knew that the Imam who headed the local clergy and was leading the effort to obtain control over the project was still alive. He responded that he had heard that he had passed away but that his son-in-law had replaced him. He further explained that it was a group of people and not just one person who wanted to personally benefit from the project.

25. At the time the applicant left Iran the land was and remains vacant. The project has not progressed further.

26. I accept the applicant’s description, as detailed above, of his dispute with the religious establishment including the instances he described of being beaten.

    Means of departure

27. The applicant claims that he had to pay bribes through a middleman as he was barred from leaving Iran. He said that he first paid someone to find out if he was barred from exiting Iran. He said that he found out that he was, so he paid the same man to arrange payments that would allow him out. He knew the middleman from before, having made his acquaintance [professionally]. He explained that few could afford [his works] and so his work brought him into interaction with wealthy people including government officials. The applicant explained that he made the payments through the middleman and then was told that the exit permits had been arranged and that he should call someone in the airport who told him to go through [a specified gate]. He claims that his departure was the same as others leaving Iran with the only difference being that they didn’t check anything but just stamped his passport.

28. I put to him that the middleman could have told him that he was barred from exiting simply to drum up additional business. The applicant said that it’s possible, but he didn’t believe so and anyway, he had to at some point trust people.

29. The applicant claimed that he was told by the middleman that he should not return as all of those who had facilitated his departure would be in trouble.

30. I accept that the applicant paid bribes to leave Iran. Being on a blacklist, acquiring an exit permit and paying bribes to exit are described in country information and align with the applicants claims.[3] In general, the sources state that with the right connections and substantial funds it is possible to bribe officials to leave from Tehran airport. Considering that the applicant had financial means and connections I find that this is plausible.

    [3] Department of Foreign Affairs and Trade, DFAT Country Report: Iran, April 2020, [5.24] and Iran: Exit and entry procedures at airports and land borders, particularly at the Imam Khomeini International airport; whether authorities alert border officials of individuals they are looking for; incidence of bribery of Iranian border officials to facilitate departure; the punishment for border officers caught taking such bribes, Immigration and Refugee Board of Canada, (2009-October 2013) [IRN104624.E]

31. I accept that the applicant paid a bribe, as described above, to arrange for his safe departure from Iran. I accept that this was necessary as he was otherwise prevented from leaving the country. There was no claim that the other applicants were required to pay bribes.

    Other applicants

32. The third and fourth named applicants also gave evidence. They described a situation in which they were returning home and a [car] started following them. As they got to their home the person who was in the car got out of the car and called the third named applicant by name. As they called for their father the man in the car drove away. The fourth named applicant believes that the incident was related to their father’s situation. I accept that this occurred as described.

33. The fourth named applicant described a second incident. Someone had called profanities at her accusing her of being an apostate and that she will go to hell. They threatened to attack her and destroy her face which she interpreted as an acid attack. Following this incident her father asked her not to go to school. She recalls this as being about three weeks or a month before coming to Australia. I accept that this occurred.

    Considerations

34. I put to the applicant country information regarding the circumstances he faces.

35. Regarding departing Iran despite being barred:

    According to Article 34 of the Penal Code, the penalty for leaving Iran without a valid passport (or similar travel document) is between one and three years’ imprisonment, or a fine of between 100,000 and 500,000 rials (approximately AUD1-5 at current market rates). The UK Home Office, in a February 2019 Country Policy and Information Note, assesses that individuals who exit Iran illegally and have not previously attracted the adverse attention of the authorities – for example, for their political activism – face a low risk of prosecution. If prosecuted, the most likely punishment is a fine. DFAT understands that, where prosecution for illegal departure occurs, it often does so in conjunction with other unrelated offences.[4]

    In response to this information the applicant stated that the majority of people receive short term prison sentences but in addition false accusations can be made against them. He gave the example of how those who want him to cooperate with them to benefit from the project accused him of apostasy.

    [4] Department of Foreign Affairs and Trade, DFAT Country Report: Iran, April 2020, [5.44]

36. The Department of Foreign Affairs and Trade report on Iran states:

    3.81 Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation[5]

    The applicant responded that for a government to show international legitimacy they would make such statements for people around the world, in reality they don’t follow those guidelines. The applicant then gave the example of Sartar Hamidani who he claims was arrested by the government and was beaten so hard that he died. I accept that there are instances where individuals are beaten by Iranian government security personnel to such an extent that they die. He said that he doesn’t believe that any political analyst believes that the Islamic Republic tells the truth.

    [5] Ibid [3.81]

37. I read to him another passage from the DFAT report:

    3.59 As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.[6]

    He responded that it is impossible. He said that the most recent example of someone having their social media account checked was that of Ruholsalan.

    [6] Ibid [3.59]

38. There is other country information which was not shared with the applicant that supports his fears. This includes that artists are closely observed:

    A local source told DFAT that filmmakers, musicians and other artists are tolerated as long as their work observes ‘red lines’. ‘Red lines’ include criticism of the Supreme Leader, the IRGC and the Islamic system of governance, as well as anything that is considered to violate Islamic values and principles.[7]

    [7] Ibid [3.105]

1. The applicant is a [specified artist], a writer and a poet. He has anti-government views that have been consistent through his life and have continued while in Australia. He has a relatively high profile albeit within a limited circle of people. He is both needed by authorities but also a threat to the authorities. His past is one that includes considerable material from which any potential government persecutor could draw upon including his actions during his military service, his father’s [political] past, his actions in protests, his writing and through speeches of being against the government.

2. I find that upon return the applicant faces continuing pressure to comply with the demands of the clergy who are intent on using his standing within the community to shape the direction of the redevelopment of the land. I find that these individuals will seek opportunities to pressure the applicant to change his stance and to support them. I also find that the applicant would continue to act in a political manner expressing his political views as he had to date.

3. Was the applicant and his family to return to Iran they would first encounter immigration authorities upon arrival. The applicant departed Iran by paying a bribe. Country information suggests that most people who do not have a political profile would attract a fine for leaving the country illegally. But the applicant is not such a person. He has a record of anti-regime actions. He wasn’t just a protestor he was perceived to be an agitator. He wasn’t just a [group] leader he was the representative of [a number of groups]. He wasn’t just pursuing the development of some land, he had stood up against local religious powerbrokers. He had refused to bow to their demands. Without him the project had not proceeded. As such I find that the applicant would be detained rather than allowed to proceed with only a fine. The applicant claimed that the government could be coaxed to lay additional charges against people who are seen as threats. I find that the applicant faces such a situation.

4. These issues will not arise at immigration checkpoint because he is flagged as a threat to the authorities in some analytical and bureaucratic manner, though this is possible considering that his writing would be known to them. Instead, I find that his background would be known as a result of the influence that his personal enemies have within the state. I find that they would use that influence to harm him or put pressure on him. These personal enemies may be the local clerical powerbrokers in [City 1] or those who were bribed to facilitate his departure and now see a threat to themselves with his return. It is reasonable to assume that such people would have ways of knowing that he has arrived.

5. By having that information used against him I find that the applicant faces between one- and three-years imprisonment for the reason of having a profile of being an agitator against the regime. He may in addition face further charges or even targeted harm in the prison through the actions of his personal enemies who either want his support or are not favourably disposed to his return.

6. While in prison the applicant may face harm in addition to the loss of liberty and poor conditions. DFAT ‘assesses that individuals suspected or found to be guilty of national security-related offences are vulnerable to mistreatment that may amount to torture inside prison.’[8] Considering the applicant’s views on the vilayet faqih and more generally towards the regime, noting that he has easily accessible social media footprint that shows these views, has authored [works] against the regime which I found would be known to the authorities and is an artist of [works] which may be considered haram, I find he would be considered as someone who is suspected of national security related offences. For the reason of the harm he faces while in prison I find that the applicant faces a real chance of serious harm for reasons of his political opinion.

   [8] ibid [5.24]

7. I find that the extra-judicial harm he faces is for reasons of political opinion and that even if others manipulate the system for their own benefit, which would not be political but material gain, the intermediaries who would harm him in prison would not know these motivations but rather would only see a man who was a threat to the regime.  As such I find that political opinion is the essential and significant reason for the harm he would face.

8. I find that torture being the harm he would face is by its nature systematic and discriminatory.

9. The state being the persecutor, I find that the applicant cannot seek protection from the state.

10. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the first named applicant satisfies the criterion set out in s.36(2)(a).

11. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the wife of the applicant and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application.

12. Regarding the third and fourth named applicants who are [specified] years of age respectively, further consideration needs to be given to whether they meet the criteria. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent child.

13. Relevant to the applicants’ circumstances the term ‘dependent child’ is given meaning in r.1.03 as a child who ‘has turned 18 and is dependent on that person’. Dependents for the purpose of protection visas, refugee and humanitarian visas and temporary safe haven visas has the meaning given in r.1.05A(2): ‘A person (the first person) is dependent on another person for the purposes of an application ‘if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.’

14. This is a requirement that needs to be met both at the time of application and time of decision (see cl.785.211(3) and cl.785.228(2))

15. In submissions on this issue the representative noted that the third named applicant is wholly dependent upon the first named applicant. Prior to arrival to Australia the applicant had little or no employment prospects and had only worked for his father in learning [his occupation]. Since arriving to Australia, he has only had a few limited opportunities when his bridging visa conditions allowed him to engage in work. He has never been able to provide for his own needs and has never been provided with the opportunity to acquire skills that make him capable of employment in his own right. They live as a family unit in the same address. In summary, it was claimed that the third named applicant is dependent upon the first named applicant for shelter, food and clothing.

16. The submission claimed that he is also heavily psychologically dependent upon the first and second named applicants. He looks to them for direction. This is in part because he has not had a chance to establish himself in a community. He has no family or other close connections in Australia.

17. Regarding the fourth named applicant, it is claimed that she was unable to complete her secondary education because they fled Iran. She had only brief periods of time when she was allowed to study in Australia. She intends to undertake tertiary studies if her visa situation allows. But as matters stand, she has no employment prospects and limited skills. In summary, it was claimed that the fourth named applicant is dependent upon the first named applicant for shelter, food and clothing.

18. The submission also claimed that the fourth named applicant has not been in a position to become independent. The process of fleeing Iran and seeking refugee status has left her highly reliant upon her parents for psychological care.  

19. I accept that the third and fourth named applicants are dependent children as defined in r.1.05A(2) and as such are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, their fate also depends on the outcome of the first named applicant’s application.

    DECISION

20. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Denis Dragovic
    Senior Member