1817726 (Refugee)

1817726 (Refugee) [2021] AATA 2634 (20 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817726
COUNTRY OF REFERENCE:                   Iran
MEMBER:Tamara Hamilton-Noy
DATE:20 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 20 May 2021 at 12:15pm
CATCHWORDS
REFUGEE – protection visa – Iran – ethnicity and political opinion – Kurdish sportsman spoke against discriminatory and corrupt actions by sport official – detained and tortured and family harassed – religion – rejection of Islam and association with Christianity – member of a particular social group – failed Kurdish asylum seeker – media attention following a public incident – department’s information breach – credibility – some late claims rejected – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J(5), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Iran who arrived by boat [in] February 2011.
The applicant’s claims were initially assessed by the Department through its protection obligation determination process. On 28 June 2011 the applicant was found not to be owed protection. This was affirmed by an independent merits reviewer on 30 April 2012. The applicant then participated in an international treaty obligations assessment and on 26 February 2016 was found to be owed protection.
On 15 March 2016 the applicant was invited to make application for a Temporary Protection Visa or Safe Haven Enterprise Visa. The applicant lodged an application for a safe haven enterprise visa on 29 May 2017 and on 22 May 2018 the applicant was found not to be owed protection.
The applicant applied for a review of that decision by this Tribunal on 18 June 2018.
Claims and Evidence
Evidence before the Department
In support of his claims, the applicant provided the Department a statutory declaration dated 11 March 2011, in which he states he is an Iranian citizen, a Shia Muslim and of Kurdish ethnicity, from Kermanshah. He states he has rejected Islam and has been thinking about Christianity. His mother and sister are his only surviving family in Iran. The applicant claimed that he had used his own genuine passport to leave Iran but it had been taken by a smuggler. He claimed he left Iran due to risk as a Kurd and due to his political opinion; he had also rejected Islam which put him at risk. He claimed he was a professional sportsman in [sport] and spent between 2002 and 2007 competing at the national level. In 2003 [an official] of the federation started rigging the competition because his son was in the same category as the applicant, and because the applicant is Kurdish. One day in 2007 he had had enough and spoke up about the injustices, while officers of Herasat were watching. Etelaat came to his house two days later and forced him into a car and kept him for one month, torturing him daily. He was released and warned if he caused more problems he would be killed. They also caused problems for his family: his father lost his [business] licence and his sister was unable to obtain a job. He believes he ended up in his situation because he is Kurdish. Around 30 relatives of his have been killed by the regime, working [in their jobs]
The applicant attended a Protection Obligations Determination interview with the Department on 24 April 2011. The Tribunal had access to a recording of the interview, relevant parts of which are discussed below.
As a result of the negative protection obligations determination, the applicant was referred to the Independent Protection Assessment review process. The applicant attended an Independent Protection Assessment on 1 February 2012.
On 25 April 2012, an independent protection assessor accepted that the applicant is Kurdish and that he was detained and mistreated after he left a [sport] program because he had expressed anti-regime views. The assessor found that the applicant was able to live from 2007 to early 2011 without attention from the authorities, other than due to un-Islamic or unacceptable behaviour or dress. The assessor found that the applicant was not of interest to the authorities and that the discrimination and economic hardship faced by Kurdish people does not amount to serious harm. The assessor did not accept that the applicant’s religious beliefs would bring him to the attention of the authorities, that any requirement to conceal his tattoos would not amount to serious harm and that as a person returning to Iran, he would not face serious harm. The assessor found that the applicant was not owed protection obligations under the Refugees Convention.
The applicant was interviewed in an Independent Treaty Obligations Assessment on 29 July 2015. On 26 February 2016, an independent treaty obligations assessor found that the applicant was owed protection. The assessor found that the Department had written to the applicant following an information breach on the Department’s website, which had disclosed some details about the applicant. The Independent Assessment Treaty Obligation determination had been conducted as a result of the response received from the applicant’s representative, inviting him to comment on the breach. The assessor also considered the applicant’s evidence that he had been identified in [the] media following [an incident] in [City] in 2014. The assessor accepted the applicant had been detained for a month but did not accept he had been imprisoned for two years after being tried by the Revolutionary Court. The assessor accepted the applicant’s father and sister had experienced difficulties after the applicant had been perceived as speaking out against the Iranian government. The assessor accepted the applicant is of Kurdish ethnicity, that members of his family had been killed in their work [but] that this was due to corruption and violence in this industry and accepted that the applicant had had run ins with the Basij in the past. The assessor found that the applicant no longer follows the Muslim faith, has not publicly rejected Islam and there was no evidence he had converted to Christianity. The assessor had regard to media reports on the applicant and found it would be reasonable to expect his circumstances had become known in Iran, including that he had applied for protection, had spoken out against the government and that he had links with a church in Australia. The assessor found that the applicant fears harm for the reasons of his religion, actual or imputed political opinion and as a failed asylum seeker, that he fears persecution upon return to Iran for these reasons and that the harm feared amounts to persecution. The assessor found that the applicant could not relocate to avoid the harm feared and could not expect protection from state authorities from the harm feared. The assessor found that the applicant is a refugee within the meaning of Article 1A of the Refugees Convention.
On 21 March 2016 the applicant was invited to apply for a Safe Haven Enterprise Visa. The applicant applied for the visa on 19 May 2017. In support of his application, he provided a statutory declaration dated 19 May 2017, which stated that he had been found to be owed protection in an Independent Treaty Assessment Obligation in 2016 and reiterated his claims that he been detained for one month and then imprisoned for two years after being charged with insulting the regime in the Revolutionary Court, that his mother and sister continued to be harassed by Etelaat officers and that he continued to fear harm for the reasons he had previously outlined.
The applicant attended a SHEV interview on 8 May 2018. The Tribunal has had access to a recording of the interview, the relevant parts of which are referred to further below.
On 22 May 2018, a delegate of the Department found that the applicant is not a person who is owed protection. The delegate accepted that the applicant had suffered low-level discrimination while on the national [sport] team and that he publicly complained and was visited two days later by Iranian officials. The delegate did not accept the applicant was held in involuntary detention for a month or that he was sentenced to two years imprisonment and held at Dizel Abad prison. The delegate accepted the applicant was detained on a couple of occasions by the Basij for minor offences. The delegate did not accept the applicant’s father’s business was affected by his behaviour, or that the applicant’s sister’s employment difficulties related to his outburst against the [sport] federation. The delegate accepted the applicant had attended a church in [City] between 2012 and 2014, that he had had media attention after [an incident] at [a Location] in 2013 and that he had been subject to a data breach by the Department in 2014. The delegate did not accept the applicant’s mother and sister were visited by Etelaat following the data breach. The delegate was not satisfied the applicant is a refugee on the basis that he was not satisfied he would face harm as a Kurdish [sport] exponent, due to [an incident], due to media attention he had received, because of any mental or physical health conditions, because of the data breach 2014 or as a failed asylum seeker from a Western country. The delegate was also not satisfied the applicant is owed complementary protection.
Evidence before the Tribunal
On 22 January 2021 the Tribunal wrote to the applicant, advising that it had considered all of the information before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing at the Tribunal’s Melbourne Registry on 24 February 2021.
On 17 February 2021, the applicant’s representative provided to the Tribunal legal submissions, a statement prepared by the applicant dated 17 February 2021, a psychiatric assessment dated [December] 2020, a ‘Medicolegal Express’ letter dated [December] 2020, a serious injury assessment report dated [December] 2020 and a discharge summary for [an] Adult Acute Psychiatric Unit dated [January] 2021.
The Tribunal hearing was held on 24 February 2021. The applicant and his representative attended the hearing. A Persian interpreter was present at the hearing, although the applicant conversed with the Tribunal largely in English. The Tribunal was satisfied the applicant was able to give evidence and present arguments throughout the hearing.
On 1 March 2021 the Tribunal invited the applicant to a resumed hearing on 30 March 2021.
The resumed hearing was held at the Tribunal’s Melbourne Registry on 30 March 2021. The applicant and his representative attended the hearing and the Tribunal was assisted during the hearing by a Persian interpreter. The Tribunal was satisfied the applicant was able to give evidence and present arguments throughout the hearing.
On 13 April 2021, the applicant’s representative provided further legal submissions to the Tribunal, the relevant parts of which are referred to below.
Consideration of Claims and Evidence
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment, reasons and findings
Country of nationality
The applicant travelled to Australia on an Iranian passport and has at all times claimed to be a citizen of Iran. The Tribunal finds the applicant is an Iranian citizen and has assessed his claims against Iran as his country of nationality.
Credibility
The Tribunal had the benefit of speaking extensively to the applicant over two hearings about his claims for protection. The Tribunal found the applicant to generally give his evidence in a clear and credible manner. However, the Tribunal had difficulty accepting aspects of the applicant’s evidence, for the reasons set out further below.
The Tribunal accepted the evidence given by the applicant that he was born in Kermanshah, that he grew up living with his parents and sister, and that his father passed away when he was around [age] years of age. The Tribunal accepts that the applicant’s mother and sister are residing in Kermanshah. The Tribunal accepts the applicant is of Kurdish ethnicity and that he grew up in a Muslim household. He described, and the Tribunal accepts, that the household was not overly religious: the family did not attend mosque and did not generally participate in religious activities or celebrations.
The Tribunal accepts the applicant competed in [sport] from an early age. He described to the Tribunal, and the Tribunal is prepared to accept, that he completed in a ‘[program]’ which provided a level of financial support to compete, and that he supplemented this income with helping his family in their [business]. The Tribunal is prepared to accept that the [business] was sold after the applicant’s father passed away.
Claims relating to [sport] competition
The applicant has consistently claimed to have faced difficulties in his [sport] career because of his Kurdish ethnicity. He described to the Tribunal being overlooked for competitions and having difficulties with [an official] of the [sport] federation on the national team, who he perceives overlooked him for selection in a national team. The Tribunal found the applicant to give this evidence in a clear and credible manner and is prepared to accept that the applicant faced a level of discrimination in his [sport] career because of his Kurdish ethnicity.
The applicant has consistently claimed to have been detained for one month after speaking out at a [sport] activity. The descriptions given by the applicant have varied in details but have been broadly consistent in his claims that he had been at a [sport] event, that he had complained about his perceived unfair treatment, that Etelaat had attended his house two days later and that he had been mistreated while being held at an unknown location for one month.
The Tribunal notes that descriptions of the [sport] event in question varied but, in the Tribunal’s view, are capable of being considered to be the same event, whether described as training, or an internal competition or a selection process for the national team. Similarly, the applicant’s accounts of his mistreatment in detention varied in details, but were broadly consistent in the applicant’s assertions that he had been mistreated while being held in custody. In contrast, his evidence about who was present at the training session and the contents of his outburst have varied in his different interviews and it is difficult for the Tribunal to understand the reasons for these differences if all of the details of the applicant’s account are credible.
The Tribunal is mindful that the applicant was in his early [age range] when he arrived in Australia, and was unrepresented in his early interviews in which more limited information was provided about his experiences in Iran. The Tribunal is also mindful that minor variations in evidence given by an applicant are to be expected over a prolonged period of time and are not necessarily an indication of lack of credibility. Therefore, while the Tribunal has some doubts about the accounts given by the applicant about his claimed outburst while at a [sport] event and the events that followed, the Tribunal is prepared to accept that, due to the applicant’s perception that he had been overlooked repeatedly for positions on the national [sport] team, he had an outburst at a training session. The Tribunal is prepared to accept that the applicant was taken away two days later by Etelaat officers and held at an unknown location for one month and that he was mistreated physically and mentally during this detention. Because the Tribunal is prepared to accept that these events occurred, the Tribunal is also prepared to accept that the applicant’s father and sister experienced difficulties in their employment as a result of the applicant’s detention.
Claims to have been imprisoned for two years
The Tribunal has significant doubts that, following being held in detention for one month, the applicant was imprisoned for two years in Dizel Abad Prison, for the following reasons.
Firstly, the inconsistencies in the applicant’s evidence lead the Tribunal to have significant doubts about his credibility regarding this aspect of his claims.

The applicant did not raise in the statement he prepared in March 2011, his entry interview or his protection obligations determination interview that he had been imprisoned for two years. He initially claimed to have worked in his father’s [business] between 2007 and 2009, the dates he later claimed to have been held in prison. The applicant first raised in his Independent Protection Assessment interview that he had been imprisoned for two years, a claim he maintained during his later interviews with the Department and in his hearing with this Tribunal.
At the Tribunal hearing, when asked about the details of his imprisonment, the applicant stated he had been taken to the Revolutionary Court. The applicant described that he was not told by the judge in the Revolutionary Court that he would be held for two years, but was told that he was being transferred to prison. He was unable to explain how the prison system would have been aware he was to be held for two years. His description of the court proceedings was that the Judge had queried who he was to insult holy people and called him a filthy dog. He stated he was unsure what charges he had been convicted of and that he had not been given any paperwork about his sentence. Even allowing for cultural differences in court proceedings, the proceedings described by the applicant appeared to be highly unusual and lacking the usual judicial procedures that would be expected in a formal court proceeding.
The applicant told the Tribunal that he was held in the ‘third section’ of the prison, with mostly political prisoners. He gave evidence to the Tribunal that he was badly treated, that the food was of poor quality, that officers would come and severely beat the prisoners and that he was beaten three times during his period of imprisonment. The Tribunal observed during the hearing that the applicant had told the independent merits reviewer in 2012 that prison had felt ‘like a hotel’ and that he had not been tortured there. He stated in response that as far as he understands, all of his rejections have been because of this misunderstanding; when he compares prison with the torture in the arrest house, prison felt like a hotel. He stated that he wasn’t purposely tortured in the prison and when there was a riot, the anti riot police would come and beat everybody.
The applicant raised for the first time at the Tribunal hearing that [an official] of the [sport] federation had been an Etelaat member. When asked why he had not identified [an official] of the [sport] federation as an Etelaat member previously, he stated that in previous interviews he would have mentioned this.
The Tribunal asked the applicant during the hearing how he was able to return to [sport] after he was released from two years in the conditions he claimed he was held in. He stated to the Tribunal that he had tried to keep up his fitness the best he could, but due to interrogations and torture, his muscles eroded significantly and he could never gain his previous strength. His evidence, given at hearing, that he returned to the [program] after release from prison and supported himself financially in this way did not sit comfortably with his evidence of his muscles having eroded significantly as a result of interrogations and torture while in prison. The Tribunal observed during the hearing that it was having difficulty accepting the applicant was fit enough to join the [program] after two years in custody where he claimed he had been badly treated, the food was poor and where there were riots and beatings. The applicant stated that he wasn’t as fit as before and couldn’t regularly attend competitions.
The Tribunal asked the applicant about ‘Ward 9’ in the prison and he stated he doesn’t know anything about Ward 9. The Tribunal observed that Ward 9 was notorious as the ‘lessons ward’ and that it has having difficulty accepting that the applicant would not be aware of this ward if he had spent two years at the prison as claimed. The applicant stated in response maybe he didn’t know that, in the country it was referred to as a different name and that there had been another ward where they had kept AIDS patients and drug addicts.
The failure of the applicant to raise that he had been held in prison for two years at an earlier date, and the consequent discrepancies in his evidence on this point, lead the Tribunal to have significant doubts about this aspect of his claims. The applicant’s claimed ability to return to competitive [sport] after being held in prison in what he claims are very difficult conditions adds to the Tribunal’s doubts about his claims to have been in prison for two years. The Tribunal considers it implausible that the applicant, if held in Dizel Abad Prison for two years, would not be aware of Ward 9 in the prison. The lack of knowledge by the applicant of Ward 9 adds further doubts for the Tribunal about the applicant’s claims to have been held in prison for two years.
Further, the applicant’s ability to leave on his own passport through the airport also suggests that he was not convicted of any offences in Iran. The Tribunal noted during the hearing that country information states that it would be difficult for someone to travel legally out of Iran if they had been convicted of an offence. The applicant stated in response that for those whose sentence had been completed, the authorities are not looking to prevent them from leaving Iran.
For the reasons stated above, while the Tribunal is prepared to accept the applicant spoke out against the [sport] federation and was detained for one month, the Tribunal does not accept the applicant was sentenced by the Revolutionary Court or that he was imprisoned for two years. The Tribunal does not accept the applicant faced any formal charges or was imprisoned in Iran in consequence of speaking out against the Iranian regime. The Tribunal does not accept the applicant is a person who has been convicted of offences against the Iranian regime.
Treatment by the Basij
The Tribunal is prepared to accept the applicant experienced negative attention from the Basij on three to four occasions during his teenage years. The applicant has consistently claimed to have been stopped by the Basij on several occasions and the Tribunal is prepared to accept that he was stopped while out with a girlfriend, and also while in public wearing Kurdish attire.
Country information considered by the Tribunal indicates that men are subject to less strict controls on personal appearance than women and that, where men have been harassed for violating the dress code, it is most likely because of over-zealous law enforcement. While the Tribunal is prepared to accept the applicant was stopped by the Basij on several occasions, it does not accept this was due to the applicant’s ethnicity.
Claims arising since the applicant has been in Australia
The Tribunal accepts that the applicant’s details were leaked on the Department of Immigration website in February 2014, at which time his name, date of birth, nationality, gender, details about his detention, including why he was detained, and details of any other family members in detention were released.
The Tribunal accepts that, also in 2014, the applicant [did something] at [a Location] and that this led to a series of media articles. The Tribunal notes that the articles refer to the applicant, variously, as an Iranian refugee, as an individual who had received support from various MPs while waiting for a visa to be granted, as an individual who was supported by a [City] church after his community detention had ended, as someone who had arrived by boat as it was his only option to escape Iran, as someone who was awaiting an assessment of his claims for protection through an International Treaties Obligation Assessment, as an Iranian asylum seeker, as an individual who had fled Iran in 2010 to escape persecution and who had spent 18 months in detention after fleeing a sinking boat, as supported by members of [a] parish, as an individual who had fled hostility in his native Iran, as a Kurdish Iranian asylum seeker, who fled on an asylum-seeker boat, as being supported by [Organisation], as an individual supported by a priest from [City] who claimed he had been denied refugee status, as being in Australia seeking protection and asylum, as someone whose details had been released on the department’s website speaking of the troubles he had had in Iran and that there was concern that the Iranian authorities would punish him and as having fled his homeland in fear of his life. One media article showed a photo of the applicant with a priest from a [City] church.
The extensive media coverage of the applicant in 2014 identified him as having fled Iran and having sought protection in Australia. A ‘google’ search of the applicant’s name at the time of this Tribunal’s decision revealed several articles on the applicant, the most recent from [2018],[1] which identified him as unsuccessfully seeking a safe haven visa and having fled his homeland in 2010 in fear of his life.
[1] [Reference deleted].
The Tribunal finds that if the applicant returns to Iran now or in the reasonably foreseeable future, he has a profile in Australian media as an individual who has sought asylum from persecution in Iran and who is affiliated with a church group in Australia. He would return as a Kurdish failed asylum seeker and an involuntary returnee, with links to the Christian community in [Australia]. The Tribunal is prepared to accept that the applicant has [tattoos]. The Tribunal also accepts from the medical reports provided by the applicant that he suffers from mental health and physical health issues.
The Tribunal has considered the following independent country information, relevant to the applicant’s circumstances upon return to Iran.
Iran has a longstanding policy of not accepting involuntary returns and has historically refused to issue laissez-passers to facilitate the involuntary return of its citizens from abroad. A March 2018 Memorandum of Understanding between Iran and Australia provided for Iran to facilitate the return of Iranians who arrived after March 2018.[2] DFAT states that authorities pay little attention to failed asylum seekers on their return. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport about the circumstances of their departure and why they are travelling on a laissez-passer. Questioning is described as taking 30 minutes to one hour, but as taking longer when a returnee is evasive in their answers or authorities suspect a criminal history. Arrest and mistreatment are not common during this process.[3] DFAT also states that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes social media posts and conversion to Christianity. The treatment of returnees depends on the returnees’ profile before departing Iran and their actions on return. DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran, such as for their political activism, returnees are unlikely to attract attention from the authorities and face a low risk of monitoring, mistreatment or other forms of official discrimination.[4]
[2] DFAT Country Information Report Iran, 14 April 2020, at 5.27.
[3] DFAT Country Information Report Iran, 14 April 2020, at 5.29.
[4] DFAT Country Information Report Iran, 14 April 2020, at 5.30 – 5.31.
DFAT states that Iranian authorities will mostly not see social media comments critical of the government due to heavy internet filtering. In contrast, the Immigration and Refugee Board of Canada reports that several sources indicate that Iranian authorities monitor online activities, including online activities outside of Iran, including social media, blogs and popular media.[5] DFAT also notes that while the authorities in Iran do not comprehensively monitor Iranians’ online activities, individuals with a public profile, including those who have connections to foreigners and are otherwise perceived as threats to the Islamic Republic, are more likely to have their social media monitored and face a higher risk of arrest or harassment than other Iranians.[6]
[5] Immigration and Refugee Board of Canada, Iran: Treatment of anti-government activists by authorities, including those returning to Iran from abroad; overseas monitoring capabilities of the government (2012-2013), 20 January 2014 at
[6] DFAT Country Information Report Iran,
Information on the treatment of failed asylum seekers returned to Iran is described as scarce, although in 2011 Iran Human Rights reported that authorities had indicated that Iranians who had sought asylum abroad should be charged with ‘dissemination of false propaganda against the Islamic Republic of Iran’. The Netherlands had reported to the Immigration and Refugee Board of Canada that Iran had been unwilling to issue laissez-passers to forced returnees from the Netherlands; while other sources indicated that Iran did not accept forcibly returned asylum seekers from Australia. A Swiss study is reported to have found that Iranians’ practice of dealing with returned asylum seekers is arbitrary and unpredictable, with a judge cited in the study stating that rejected asylum seekers are questioned regardless of whether they were politically active in Iran or abroad and that they are placed in detention for several days until the police have verified they have not engaged in political activities, after which they are released; if they are found to have been politically active, whether in Iran or abroad, they will be prosecuted and punished.[7]
[7] Immigration and Refugee Board of Canada, Iran: Treatment by Iranian authorities of failed refugee claimants and family members of persons who have left Iran and claimed refugee status, 10 March 2015 at
More recently, a source speaking to the Immigration and Refugee Board of Canada in February 2020 stated that the family of a returnee would need to negotiate with authorities for the terms of their return, that there is no guarantee the authorities would not take punitive action against the returnee and that ‘all indications suggest’ that a person who is perceived to have left Iran for any reason other than to simply work has no guarantee of their safety upon return to Iran.[8]
[8] Immigration and Refugee Board of Canada, Iran: Treatment by Iranian authorities of failed refugee claimants and family members of person who have left Iran and claimed refugee status (2017 – February 2020) at
There are an estimated 8 million Kurds in Iran, predominantly Sunni Muslim. They are concentrated in the north-western provinces of Kurdistan, Kermanshah, Ilam and West Azerbaijan. The provinces in which they are concentrated are relatively under-developed economically and have some of the highest rates of unemployment in the country. Kermanshah in 2019 had the highest unemployment rate in Iran at 20.9 per cent.[9]
[9] DFAT Country Information Report Iran, 14 April 2020, at 3.18.
The Kurds, in comparison to other ethnic minorities, have traditionally harboured separatist tendencies and a number of militant groups promote Kurdish self-determination and occasionally engage in armed clashes with security forces, who maintain a large presence in Kurdish areas, although Kurdish separatist activity has been at a lower level than in neighbouring countries, partly due to Iranian Kurds’ living standards being generally higher than those of neighbouring Kurds. The authorities are highly sensitive to organised political activity by the Kurds. Kurdish political prisoners charged with national security offences are reported to represent almost half of the total number of political prisoners in Iran and constitute a disproportionate portion of persons who receive the death penalty and are executed. International sources report that the government uses security, media and other laws to arrest and prosecute Kurds for exercising freedom of expression and association. Authorities have reportedly banned some Kurdish language materials, have denied Kurdish NGOs registration permits and have brought security charges against persons working in such organisations, and have prohibited teaching of the Kurdish language in most schools and universities.[10]
[10] DFAT Country Information Report Iran, 14 April 2020, at 3.19 – 3.21.
DFAT assesses that Kurds are not specifically targeted for discrimination on the basis of their ethnicity or religion and are afforded the same state protection as other minorities. However, Kurds who are politically active are considered likely to attract adverse attention from the authorities and those who advocate for greater rights and autonomy and/or self-determination face a high risk of official harassment, monitoring, imprisonment and mistreatment.
The UK Home Office has noted that, in a country guidance case issued by the Upper Tribunal in 2018, the Upper Tribunal found that, while discrimination faced by Kurds is not generally at a level to amount to persecution, since 2016 the authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity; those of Kurdish ethnicity are regarded with greater suspicion and are likely to be subjected to heightened scrutiny on return to Iran. The Upper Tribunal’s decision further notes that the authorities demonstrate a ‘hair trigger’ approach to those suspected to be involved in Kurdish activities or rights, meaning that the threshold is low and the reaction of authorities is likely to be extreme.[11]
[11] HB (Kurds) Iran CG [2018] UKUT 430, cited in: UK Home Office, Country Policy and Information Note, Iran: Kurds and Kurdish political groups at 2.4.3 & 2.4.4.
During 2020, the government disproportionately targeted minority groups, including Kurds, for arbitrary arrest, prolonged detention, disappearances, and physical abuse. Ethnic minority groups reported political and socioeconomic discrimination, particularly in their access to economic aid, business licenses, university admissions, job opportunities, permission to publish books, and housing and land rights.[12]
[12] US Department of State, Country Reports on Human Rights Practices 2019, Iran, 30 March 2021, at
As of December 2020, there were an estimated 610 prisoners of conscience being held in prisons in Iran, including those jailed for their religious beliefs. The government often charged dissidents with vague crimes such as ‘antirevolutionary behaviour’, ‘corruption on earth’, ‘siding with global arrogance’, ‘waging war against God’ or ‘crimes against Islam’. A political crime is defined as an insult against the government as well as the ‘publication of lies’. Political crimes are defined as acts ‘committed with the intent of reforming the domestic or foreign policies of Iran’.[13]
[13] US Department of State, Country Reports on Human Rights Practices 2019, Iran, 11 March 2020 at >
While the Constitution prohibits all forms of torture, the US Department of State has reported that the use of physical and mental torture to coerce confessions is prevalent, particularly during pre-trial detention, and that there have been credible reports of security forces and prison personnel torturing and abusing detainees and prisoners. Human rights groups have accused security forces such as the Basij of committing human rights abuses including acts of violence against protestors. Common reported methods of torture include threats of execution or rape, sleep deprivation, electroshock, the use of pressure positions and severe and repeated beatings. Authorities also allegedly maintain unofficial secret prisons and detention centres outside of the national prison system, where abuse has reportedly occurred.[14]
[14] US Department of State, Country Reports on Human Rights Practices 2019, Iran, 11 March 2020 at

As an individual who arrived in Australia prior to March 2018, the applicant would not be eligible to be returned under the 2018 Memorandum of Understanding between Iran and Australia. Iran has historically refused to issue laissez-passers to facilitate involuntary returns and the applicant would therefore return without the necessary documents to facilitate his entry into Iran. As an individual without such a document, and who is returning not as a voluntary returnee but as a forced returnee, it is reasonable to assume the applicant would be questioned extensively about his reasons for travelling abroad and for returning to Iran; while the country information, set out above, indicates that treatment of returnees varies, the information indicates that individuals at increased risk of adverse attention include those who had contact with authorities prior to leaving Iran. The Tribunal finds that the applicant’s one-month detention prior to leaving Iran increases his risk of extensive questioning, as an individual who had attracted adverse official attention prior to departing Iran. In addition, the Tribunal finds that the authorities have been increasingly suspicious of Kurds since 2016 and that the applicant would face heightened scrutiny also for reasons of his ethnicity.
While country information varies about what online information the Iranian authorities have access to, the Tribunal placed weight on the information provided by the Immigration and Refugee Board of Canada, taken directly from a source in Iran, which indicates that media reports on returnees are accessed. The applicant is identified in Australian media as an individual who has spoken out against the Iranian regime, is of Kurdish ethnicity and is associated with a Christian church in [City].
The Tribunal finds that, if he returns to Iran, the applicant would be detained and questioned. Conditions in detention are described as dangerous, with rapes, sleep deprivation, electroshock and physical assaults being used against detainees and prisoners. The Tribunal finds that the chance is more than remote that the applicant would be detained and mistreated as an involuntary returnee to Iran. Given the harm feared by the applicant is from the state itself, the Tribunal finds that effective protection measures are not available to the applicant in Iran.
The Tribunal finds that failed Kurdish asylum seekers are a particular social group as defined in s.5L, as their characteristics are shared by each member of the group, each characteristic is an innate or immutable characteristic and is so fundamental to members’ identity or conscience that the member should not be forced to renounce it. This characteristic distinguishes the group from society and the uniting characteristic is not a fear of persecution.
The Tribunal finds that the applicant’s membership of the particular social group of failed Kurdish asylum seekers is the essential and significant reason for the harm he fears in Iran. The harm feared by the applicant is heightened because of his ethnicity, his imputed conversion to Christianity and the involuntary nature of his return. The Tribunal finds that the harm feared by the applicant amounts to serious harm and that it involves systematic and discriminatory conduct as required by s.5J(4).
The Tribunal finds that the applicant has not engaged in conduct in Australia for the purposes of strengthening his claim to be a refugee and that he is not denied protection for reasons of s.5J(6).
The Tribunal finds that there is a real chance the applicant will suffer persecution for reasons of his membership of the particular social group, failed Kurdish asylum seekers returned to Iran, if he returns to Iran now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant’s fear of persecution is well-founded and that he is a refugee as defined in s.5H.
Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
Member

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

[2021] AATA 2634

20 May 2021

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Immigration

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