1819407 (Refugee)

[2018] AATA 5234

1819407 (Refugee) [2018] AATA 5234 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819407

COUNTRY OF REFERENCE:                  Iran

MEMBER:Jason Pennell

DATE:9 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 9 November 2018 at 10.48 am

CATCHWORDS
REFUGEE – Protection visa – Iran – Federal Circuit Court remit – religion – Bahai – particular social group – person with drug convictions – returnee from the west – victim of discrimination – owes significant debt – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 439, 499, 501
Migration Regulations 1994 (Cth), Schedule 2, Schedule 4 PIC 4001

CASES
BTE18 v Minister for Home Affairs & Anor [2018] FCCA 1441
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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 on 6 September 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 17 February 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect to whom Australia has protection obligation under s.36(2)(a) and s.36(2)(aa) of the Act.

3.The applicant appeared before the Tribunal on 19 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5.This is the second tome the tribunal has heard the applicant claim for protection visa. On 30 October 2017, the Tribunal first heard the applicant claim for a protection visa. By a decision dated 12 February 2018, the Tribunal determined that the applicant was not owed protection obligations. The applicant appealed the decision to the federal Circuit Court. [In] June 2018, Judge [of] the Federal Circuit Court set aside the tribunals decision and remitted the matter back to the tribunal to be determined according to law.[1]

6.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

RELEVANT LAW

7.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.

[1]  BTE10 v Minister for Home Affairs & Anor [2018] FCCA 1441.

1. 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.

2. 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.[2] 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.[3]

   [2]  s.5H(1)(a) of the Act

   [3]  s.5H(1)(b) of the Act

3. Pursuant to 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.

4. 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) of the Act.

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

Character Test Requirements

1. In addition to satisfying the criteria the applicant must also satisfy the character test requirements as set out in the public interest criterion (PIC) 4001 in Schedule 4 to the Migration Regulations 1994 (the regulations) and s.501(6) of the Act for the grant of a protection visa. This test rests with the Minister. The Tribunal’s review of his application for a protection visa is confined to a consideration of the criteria for a protection visa and does not include an assessment of whether the applicant satisfies the character test requirements.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The applicant’s migration history

1. The applicant arrived in Australia [in] November 2006 on a Prospective Marriage [visa]. He was subsequently granted a Permanent Spouse visa [on] 22 June 2009 which was cancelled on 9 May 2016 under s.501 of the Act. The applicant lodged an application for a protection visa on 20 February 2017.

Country of Reference

1. In his application the applicant claims to have been born in Iran [in date] and a citizen of Iran. The departmental file [contains] a copy of the applicant’s marriage certificate which states that he was born [in date] in Shiraz Iran. The applicant provided a copy of the first page of his Iranian passport which confirms his date of birth. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.

2. Accordingly, in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Islamic Republic of Iran and  his protection claims will be assessed against Iran as the country of reference and 'receiving country' respectively.

The applicant’s protection claims

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant’s written claim for protection are based on his claim that he is of the Baha’I faith and are contained in his contained in his application for a protection visa dated 20 February 2017 (‘the protection application’) (‘the written claim’) as follows:

   Why did you leave that country?

   ‘Originally, I left Iran to be with my fiancé. She had immigrated to Australia from Iran. We wanted to start a new life in a safe country.’

   What do you think will happen to you if you return to that country?

   ‘I will be persecuted for 3 reasons: 1.    People of my religious beliefs are persecuted because they are Barah’i. Once the government finds out, they do not stop until you are captured. 2. My drugs charges in Australia can carry a sentence of hanging death in Iran. 3.I owe money to people in Iran who will come after me and my family of I return. Me being in Australia keeps both me and them safe.’

   Did you experience harm in that country?

   ‘Yes. I was once detained for 30 days on allegations. During this time I was tortured relentlessly. I was hung by my arms above my head with my feet barley touching the ground for 4 days straight. Then I was forced into a box only big enough to crouch in and systematically starved and frozen for weeks. I was held against my will, then released with no reason why I was held I the first place. I assume it was mistaken identity as other people I worked with were taking bribes, but not me.’

   Did you seek help within the country after harm?

   ‘No. I was sent to serve in the army after my release for torture and I was lucky just to be alive. I also fear of I said anything I would have been tortured again and possibility killed. I witnessed many atrocities and the death of my closest friends.’

   Did you move, or try to move, to another part of that country to seek safety?

   ‘No. I felt more safe with my family close by. I could also help support them with life and financial costs.’

   Do you think you will be harmed or mistreated if you return to that country?

   Yes. The government is now aware that I am Barah’I and they will capture and torture me due to my beliefs. I will be starved, beaten, browned, burned, stoned and possibly killed. I know this because my nephew has been captured and tortured because of his religious beliefs. He was hard worker and student who had never been in trouble in his life. He has now been in jail over a year along with many other Bahar’i due to their beliefs. This is recent persecution by the government as it was not this bad in the past.’

   Do you think the authorities of that country can and will protect you if you go back?

   ‘The authorities will be the ones persecuting me.’

   Do you think you will be able to relocate within that country?

   ‘I honestly believe I have no future in Iran. To return will be a death sentence. If the government doesn’t catch me, the people I owe money to will in either case it will result in death and torture for me and possibly my family.’

3. At the hearing, the applicant relied upon his submissions to the Tribunal dated 23 October 2017 (two letters), 13 November 2017, 6 February 2018 and 11 December 2011(‘received by the Tribunal on 11 December 2017 and as such referred to as ‘11 December 2017’ in these reasons’). In addition, he relied on his further submissions dated 10 October 2018 and 22 October 2018.

4. The applicant claims that he faces a very real risk of serious harm or alternatively significant harm if he was to return to Iran due to his combined profile as a  Baha’i person with:

   (a)drug convictions (including convictions for the manufacture of drugs); and/or

   (b)a returnee from the west (with an implied political opinion of Western democratic ideas); and/or

   (c)significant debts that may be used against the applicant by private citizens or the government to target him due to his Baha’i faith).

5. Finally, the applicant’s submission dated 11 December 2017 refers to a claim that if the applicant’s Baha’i status is not recognised in Australia and he is forced to return to Iran he will be at a real risk of serious or significant harm by reason of the loss of support from the Baha’i community. However, the applicant now informs the Tribunal that the Baha’i community has now lifted its sanctions against the applicant[4] and as such this claim is no longer relevant.

   [4][Title]; Applicants submissions dated 10 October 2018 p.4

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal had before it’s the Department of Immigration and Border Protection file number [number] (‘the department file’) in respect of the applicant which contains the applicants protection visa application, a copy of the first page of his Iranian passport,[5] a recording of an interview between the applicant and a delegate of the department held on 6 April 2017[6] in relation to his application for a protection visa and a copy of the delegates decision to refuse to grant the visa dated 6 September 2017.[7] The delegate’s decision refers to the applicant proving a copy of his Iranian passport No [number] issued in the applicants name [in] 2007 by the Iranian Embassy in Canberra and expired [in] 2012.[8] 

   [5] [Department file number] @ f112.

   [6] OpCit @ f105-111.

   [7] OpCit f139-130.

   [8] OpCit @ f139.

2. The file also contains documentary evidence submitted by the applicant including:

   (a)A copy of the [State] Marriage Certificate issued in [the city] dated [in] May 2007 indicating that the applicant was married in accordance with the rites of the Baha’i faith.

   (b)Copies of newsletters sent to the applicant by the National Baha’i Office of Australia.

   (c)A letter from the [Assembly] dated [in] April 2017confirming that the applicant is a member of the Australian Baha’i community. The Tribunal notes that an office of the department verified the authenticity of this letter with the Assembly.

   (d)A letter from the [Assembly 1] to the applicant dated [in] December 2017 advising of the removal of the applicants voting and administrative rights.

3. Additionally, the file contained information relating to the cancelation of the applicants partner visa. This material is a letter handwritten by the applicant dated 20 February 2017 seeking a review of the decision to cancel his Visa, a copy of the applicants sentencing by Judge [of] the District Court [dated] [in] March 2015 and a copy of the [Police] Force Criminal History of the applicant.

4. A non-disclosure certificate pursuant to s.438(1)(b) of the Act was placed on folio 129k of the file. This folio consists of a ‘dob-in’ letter and the non- disclosure certificate relates to the protection of the identity of the author of the letter.

5. In addition to the written submissions referred to above the Tribunal received the following documentation from the applicant:

   (a)A copy of the applicant’s registration with [Assembly 2] dated [in] September 2017.

   (b)A video of the applicants’ marriage ceremony in Iran which illustrates that this marriage also took place in accordance with the Baha’i rites and traditions.

   (c)A submission provided by the General Division of the AAT in respect of his review of his visa cancellation under s.501 of the Act.

   (d)A copy of the transcript of the sentencing comments by Judge [in] the [District] Court (Criminal jurisdiction) dated [in] November 2016.

   (e)Support letter from the applicant’s nephew in [another country].

   (f)Letter of support for a friend of the applicant’s father

   (g)Newspaper article published in the Sydney Morning herald on 16 December 2011 entitled ‘Burns victim charged with making drugs in Sydney unit.’

6. After the hearing conducted on 30 October 2017 the Tribunal, with the agreement of the applicant, on 8 November 2017 wrote to [Assembly 1] requesting further information in relation to the ramifications of drug use by a member of the Baha’i community.  The Tribunal also invited general comments on the Iranian authorities’ treatment of persons in the applicant’s circumstances.

7. [Assembly 1] responded to the Tribunals request by an email dated [in] December 2017. In addition they provided the Tribunal with a copy of a report published by the Baha’i International Community dated October 2016 ‘titled ‘The Baha’i Question revisited: Persecution and resilience in Iran.’

Non-Disclosure certificate

1. As noted in the previous Tribunal decision, notification[9] was placed on the department file that information has been given to the department in confidence pursuant to s.438(1)(b) of the Act. The reason for the notification was that the relevant folios contained the name and address of a person who submitted information in confidence to the department. The notification suggests that the information would need to be redacted if it was to be disclosed to the applicant.

   [9] [Department file number] f 129

2. At the hearing the Tribunal provided a copy of the notice to the applicant, through his agent. The applicant conformed that it was the same notice that had been provided to the applicant at the previous Tribunal hearing. The Tribunal confirmed that the material on the folio was in the form of a ‘dob-in’ letter and that the Tribunal was exercising its discretion to divulge the gist of the letter as the Tribunal had formed the view that it was material known to the applicant as it was about the use of drugs. The applicant was invited to make a submission on the validity of the certificate. Through his representative the applicant declined to make any such submission.

3. The Tribunal finds that the notice was valid given as it deliberately explains his disclosure of the information would not be in the public interest as it would entail a breach of confidence. The Tribunal is of the view that if confidentiality is to be maintained, then redacting of the relevant folio to maintain the confidence of the informant would need to be an extent that would render the folio meaningless.

4. However, the information in the letter was provided without any supporting evidence and as such the Tribunal has given it no weight in making its decision in this matter.  

COUNTRY INFORMATION

1. In addition the Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT report on Iran dated 7 June 2018 (‘the DFAT Report’) notes the following:

   Baha’i

   ‘The Baha’i faith has its roots in 19th century Persia, and promotes a belief in the unity of God, religion and humanity. According to Human Rights Watch data, the Baha’i community numbers at least 300,000 and is concentrated in Tehran and Semnan. Baha’i is not a recognised religion. In 1991, the Supreme Council of the Cultural Revolution issued a determination on ‘the Baha’i question’ that concluded that Baha’i contradicted the tenets of Islam. A subsequent ruling in 2009 declared that all existing Baha’i administrative arrangements were illegal. As a result of these rulings, thousands of Baha’i have been expelled from their jobs, with their pensions terminated, and Baha’i have been barred from employment in the public sector; authorities have pressured companies to dismiss Baha’i employees; banks have blocked the accounts of Baha’i clients; and authorities have barred Baha’i students from enrolling in universities. In her August 2017 report, the UN Special Rapporteur found that at least 21 Baha’i students who had enrolled in higher education institutions (and attempted to hide their religious identity) were expelled between December 2016 and May 2017.

   International sources have reported that authorities continue to harass, interrogate and arrest Baha’i; the government uses anti-Baha’i rhetoric in official statements; employers face considerable societal pressure not to employ Baha’i or to dismiss them from private sector jobs; there have been several cases of vandalism in Baha’i cemeteries; Baha’i are unable to legally reproduce or distribute religious literature; and Baha’i families are excluded from official recognition of family law matters, including marriages, divorces and custody arrangements.’

   DFAT assesses that Baha’i face a high risk of both official and societal discrimination based on their non-recognised status, the hostile rhetoric used against them in official statements, and limits imposed on their employment, education and family law status.

1. An article by Human Rights Watch reports that the Iranian Intelligence Officials have recently increased the arrests of the country’s Baha’i ‘without any clear charges.’[10]

   [10]   Iran: Arrests Harassment of Baha’is Public Official Arrested for Speaking out against Repression; Human Rights Watch 16 October 2018. >

   In addition, Amnesty International Report 2017/18 states that widespread and systematic attacks are carried out against the Baha’i minority. These attacks include arbitrary arrests, lengthy imprisonment, torture and other ill-treatment, forcible closure of Baha’i-owned businesses, confiscation of Baha’i properties, bans on employment in the public sector and denial of access to universities. The report states that the authorities regularly incited hatred and violence, vilifying Baha’is as “heretical” and “filthy”.

   Drugs

2. An Amnesty International report sets out the following relevant information:[11]

   [11]   Amnesty International report ‘Addicted to Death: Executions for Drug Offences in Iran dated December 2011, use of crude opium (teriak) and a refined form (shireh), often smoked or drunk, stretches back hundreds of years in Iran. In common with many other countries, in recent decades Iran has seen an explosion in addiction to heroin, often called “crystal” on account of its white powdered or crystalline form, which is usually injected. Most is smuggled into Iran, particularly from Afghanistan. Consumption of other illegal drugs such as crack cocaine and, more recently, amphetamine-type stimulants (ATS) such as methamphetamine (“crystal meth” or shisheh) – much manufactured inside Iran - has also grown in recent years.

   As well as having one of the world's highest consumption rates of illegal narcotics at over two per cent of the adult population, Iran is also an important transit country for trafficking elsewhere, owing to its long borders with Afghanistan and Pakistan. An estimated 145 metric tonnes of heroin were trafficked into Iran from those two countries in 2009, with most of it trafficked onwards, especially towards Europe. In 2008, over 1,000 metric tonnes of opium, some 450 metric tonnes of which were consumed domestically, are estimated to have been trafficked into Iran.……

   Since 2009, Iran also appears to have become a significant location for the clandestine manufacture of methamphetamine, some of which is consumed domestically, but increasing amounts are trafficked to Malaysia, Indonesia and other countries in Asia.

   In 2009, the opiate market in Iran was estimated at around US$3 billion.

   The majority of the profits went to Iranian criminal groups and, to a lesser extent, foreign drug traffickers based in the country.

   Drug use has a devastating effect in Iran: the rate of drug-related deaths is 91 per 1 million people aged 15-64, the fourth highest rates in the world. In addition, a large majority of the over 21,000 known HIV/AIDS cases have resulted from infections arising from the use of injected drugs, according to Iran's National AIDS Committee Secretariat in the Ministry of Health and Medical Education. The first recorded case of HIV transmission through the injection of drugs was identified in 1989. By 1996, drug injection was the most prevalent way to become HIV-positive in Iran. The prevalence of HIV among prisoners is particularly high…..

   The death penalty was first introduced for drug trafficking in Iran in 1959. Hundreds of people were executed for this offence under the administration of the former Shah, according to Amnesty International's estimates. The number of executions generally and for drugs offences specifically rose sharply after the Islamic Revolution of 1979. According to Iranian officials, around 18,000 individuals were held in connection with drugs offences in 1979, and hundreds may have been executed between 1979 and 1980. Executions for drugs offences continued at a lesser rate during most of the 1980s, when Iran was at war with Iraq, but rose again sharply after the ceasefire in July 1988.

   By 1997, the authorities realised that their draconian approach was not working. The number of users of illegal drugs was continuing to rise and was causing a heavy burden on society, including by contributing to the spread of HIV/AIDS. With this in mind, the Expediency Council amended the Anti-Narcotics Law in November 1997, shortly after the unexpected election victory of the reformist President Khatami. The amended law maintained the death sentence for some drug-related offences. These include: planting poppies, coca or cannabis with the intention to produce drugs, on the fourth conviction; smuggling more than 5kg of opium, cannabis or grass into the country; buying, keeping, carrying or hiding more than 5kg of opium and other specified drugs, on the third conviction; and smuggling into Iran, dealing, producing, distributing or exporting more than 30g of heroin, morphine, cocaine or their derivatives. Armed drug smuggling also continued to attract a mandatory death sentence………

   The 2011 Amendments to the Anti-Narcotics Law introduced the death penalty for trafficking or possessing more than 30g of specified synthetic, non-medical psychotropic drugs35 and for recruiting or hiring people to commit any of the crimes under the law, or organizing, running, financially supporting, or investing in such activities, in cases where the crime is punishable with life imprisonment.36 It also provides for a mandatory death sentence for the “heads of the gangs or networks”, although there is no definition given of a gang or network.37 A list of the 17 offences that carry the death penalty in the amended law may be found in Appendix 1 of this report.

   The amended law also continues to provide measures for the rehabilitation and reform of drug addicts, rather than criminalizing them. Under Articles 15 and 16, drug addicts are required to seek treatment in authorized rehabilitation and harm reduction centres. Those with a certificate of treatment in a rehabilitation centre are exempted from punishment for offences under the law. Any addict not in possession of such a certificate will be sent to such a centre by a judicial order for six months. This period can be extended once for a further three months at the request of the centre or of the individual with the agreement of the centre. During this time, prosecution of the individual will be suspended. If the centre reports that the individual has undergone successful rehabilitation, prosecution will be dropped. However, unlike the previous law, prosecution is envisaged for addicts who fail to be rehabilitated.38 Penalties include imprisonment, fines or flogging.’

3. VOA news[12] reported in April 2018 that Iran's parliament amended the nation's drug-trafficking laws last October to restrict death sentences to traffickers convicted of carrying weapons, acting as a ringleader, or using mentally ill people and minors under age 18 in a drug crime. It also raised the minimum amounts of illegal drugs that would subject convicted traffickers to the death penalty. The changes took effect in November and were made retroactive, prompting the Iranian government to suspend executions for thousands of convicted drug offenders on death row pending a review of their sentences for potential commutation to prison time.

   Conditions for Returnees

   [12]  VOA News ‘Amnesty Reports Drop in Iran's Drug-Related Executions in 2017’ by Michael Lipin dated April 12, 2018 >

   The DFAT report states that Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. However, on 18 March 2018 Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.

4. The International Organisation for Migration (IOM) runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. The DFAT report states that the authorities will usually question a voluntary returnee on return only if they have already come to official attention, such as by committing a crime in Iran before departing. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region.

5. The DFAT report states that according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran. It notes that Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government – heavy internet filtering means most Iranians will never see them – converting to Christianity, or engaging in LGBTI activities. In such cases the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists.

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[13]

   [13] s.5AAA Migration Act 1958. MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[14] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [14]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[15] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Applicant’s evidence.

[15]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

1. The applicant’s evidence was that he was born in Shiraz, Iran [in date] and that he is a citizen of the Islamic Republic of Iran. The applicant claims that he speaks reads and writes Farsi and English and that he of the Baha’i religion.

2. The applicant’s evidence was that his father has passed away but his mother remains in Iran. His father was self-employed as [an occupation] and his mother worked selling [products]. The applicant’s evidence was that he has [siblings] all living in Iran.  The applicant’s evidence was that his family are all of the Baha’i region and faith.

3. The applicant attended public school in Shiraz, Iran until completing the equivalent of [grade] in [year]. The applicant then served in Iranian army for a period of approximately two years. The applicant had worked as a trainee [occupation] in the family’s business during school holidays. After leaving the army he returned to the family business before commencing his own welding business in 2001.

4. The applicant was previously married and divorced in Iran. The applicant arrived in Australia [in] November 2006 on a Prospective Marriage visa and married his second wife [in] January [2007]. The applicant was granted a Permanent Spouse visa on 22 June 2009. As a result of his second marriage the applicant’s daughter was [born].

5. The Tribunal accepts the applicant’s evidence in the relation family and personal details detailed in paragraph 42-45 herein. 

Applicant refugee claim

(a)Applicants Baha’I Faith

1. In relation to the applicant’s claim that he is Baha’i, during the course of the hearing he demonstrated that he was familiar with the Baha’i religion. He stated that his family had a long history of association with the Baha’i religion and as a result he identified as Baha’i. The applicant indicated that his mother maintained a strong belief in the Baha’i faith having converted from Islam. In addition the Tribunal accepts the documents provided by the applicant that indicate he is Baha’i. These include a video of his marriage to his first wife in Iran which indicates the ceremony was conducted in accordance with the Baha’i rites, his [marriage] certificate to his second wife recording that he was married in accordance with the rites of the Baha’i faith and a letter of verification provided by the [Assembly 1] (‘the Baha’i Assembly’) confirming the applicant as a member of the Australian Baha’i community. As a result the Tribunal accepts and finds that the applicant is a Baha’i.

2. In finding the applicant to be Baha’i the Tribunal notes that his membership of the Baha’i community has been with qualifications. At the hearing the applicant acknowledged that his lifestyle, most notably his use of drugs, was not in keeping with the Baha’i religion and that while he has always identified as Baha’i, he was not always engaged with or participated in his faith.  The Tribunal notes that the applicant has a criminal record dating back to December 2011 for offences relating to damage to property, driving under the influence and manufacturing drugs for which the applicant was found guilty and sentenced to four and half years imprisonment.

3. In response the Tribunal’s letter dated 8 November 2017 the Baha’i Assembly advised as follows:[16]

   ‘The Baha’i Faith requires its members to uphold the highest ethical standards. All Baha’i are exhorted to obedience to government, which includes obedience to the law. If a Baha’i is found to have seriously breached Baha’i standards or violated Australian criminal laws, he/she may be subjected to religious sanctions. Each case is considered on its merits and the outcome determined taking I to account religious considerations.

   Baha’i processes are distinct from civil or criminal processes. We recognise and respect the authority of the police and other government agencies and the decisions of the Australian Courts.

   The religious sanctions of a Baha’i being deprived of his/her voting and administrative rights are a grave sanction. In effect the administrative expulsion for membership in Baha’i community, although the individual may continue to believe in the Baha’i faith and can still attend those activities that are open to the public.’ 

   [16]    Email for the [Assembly 1] to the AAT dated [in] December 2017.

4. By an email dated [in] September 2018 from the Baha’i Assembly to the applicant the Baha’i Assembly recognized the applicant’s remorse for his actions and confirmed that he was free to seek the Assembly’s assistance during his process of reflection.  Therefore while the Baha’i assembly has offered their support to the applicant, the sanctions imposed on him do not appear to have been lifted as claimed.[17] Nevertheless the Tribunal accepts and finds that even with the sanctions imposed the applicant remains of the Baha’i faith.[18] 

   [17]   [Title],  Applicants Submissions dated  10 October 2017 @ p.4

   [18]  BTE18 v Minister for Home Affairs & Anor [2018] FCCA 1441 at [2].

5. The applicant conceded that when he was in Iran he had not always maintained his practice in the Baha’i faith.  He said that his first wife was Baha’i and as a result he attended gatherings of followers, assisted in hosting such gatherings and, from time to time, helped teach the faith to Baha’i children. He confirmed that he was not involved with the administration or organisation of the religion in Iran. The applicant did not provide any supporting evidence of his involvement in the Baha’i religion in Iran. Nevertheless, the Tribunal accepts his evidence that his involvement in the religion was limited to attending gatherings and helping with the instruction of children during the time he was married. The applicants evidence was that he was not involved in any leadership position within the religion, in particular the Spiritual Assemblies[19]and that after separating from his first wife he failed to maintain his practice in the Baha’i faith.

   [19]  The Spiritual Assemblies is the central controlling body that runs the affairs of the religion. Its     members are appointed by the Universal House of Justice based in Israel.

6. The Tribunal notes the applicant’s participation in the activities of the Baha’i community was limited and his lifestyle was not in keeping with the Baha’i faith. The applicant by his submission dated 23 October 2017[20] notes that his limited involvement and low profile were as a result of the applicant having been conditioned into keeping a low profile to ensure the survival and out of fear.

   [20]   [Title],  Applicants Submissions dated  23 October 2017 @ p.2

7. However, the applicants own evidence at the hearing was that while he had been involved in the Baha’i religion during his marriage, he had failed to maintain his practice after separating from his wife. His submissions[21] note that his family had been active in the Baha’I community for approximately 75 years.  His mother had converted from Islam to Baha’i to marry his father while his father was a member of the council of nine for Shiraz and Sarvestan Baha’i community. No evidence was provided of his mother and father having been persecuted as a result of their faith.

   [21]   Ibid.

8. Finally, the applicant’s departure from the practice of the Baha’i faith appears to have continued when he arrived in Australia when he was a liberty to practice his faith in full.  Rather than openly engaging with his faith, upon his arrival in Australia the applicant chose to engage in criminal activity that included the use and manufacturer of drugs contrary to his Baha’i faith and the conditions of his visa. As such the Tribunal places no weight his submission that his limited involvement and low profile were as a result of him having been conditioned into keeping a low profile to ensure the survival and out of fear.

1. While the Tribunal notes that the applicant’s future participation in the Baha’i community is no longer limited to the sanctions placed upon him by the Baha’i Assembly,[22] in light of the applicants limited past religious practices the Tribunal finds that the applicant would not be required to modify his religious practices to avoid serious or significant harm from the Iranian authorities.

   [22]   [Title],  Applicants Submissions dated  10 October 2018 @ p.4

2. The Baha’i International Community report dated October 2016[23] deals with various cases in which Baha’is have been arrested. The cases reported all involve individuals who are either involved in leadership roles with the Baha’i Association or a person performing educational functions or community service functions. There is little reference to arrests of Baha’is who might be considered low profile. The fact that the Tribunal has found that the applicant did not hold a leadership or educational role within the Baha’i faith and as such I less at risk of coming to the adverse attention of the Iranian authorities.

   [23]   The Report of the Baha’i International Community October 2016: The Baha’i Question Revisited:    Persecution and Resilience in Iran. 

3. As a result, the Tribunal finds that the applicant was not an active member of the Baha’i faith. He did not hold a leadership or organizational role. The applicant’s evidence was that after he separated from his first wife he did not remain an active member of the Baha’i community.  It therefore appears that the applicant’s involvement in the Baha’i faith was at best sporadic while in Iran. In fact it is the case that upon his arrival in Australia the applicants abandoned its teaching and principles by engaging in criminal activity.

   (i)          Past harm

4. The applicant claims that he experienced significant discrimination and persecution his entire life as a result of his Baha’i faith. He specifically claimed that during his military service in 1995-97 he was discriminated against due to his Baha’i faith.[24] As a result he said that he was tasked with the more unpleasant and dangerous duties and that he was victimized and blamed for others mistakes and errors resulting in a month’s detention. The applicant did not provide any independent evidence of any incidents of discrimination he may have suffered while he was in the military. Nevertheless, the Tribunal accepts that such events occurred although it is difficult to determine to what extent they were as a result of the applicants religion compared to the normal treatment of military conscripts. In any event the treatment complained of is approximately 20 years ago and as such the Tribunal places limited weight on it as an indication of future harm.   

   [24]   [Title],  Applicants Submissions dated  23 October 2017 @ p.5

5. The applicant claims that at school he was often suspended due to his Baha’i faith. In addition he claims that he faced pressure to convert to Islam.[25] He claims that each year he was required to pass a character test that required him to pray to Allah, in order to progress to the next level, which he was not able to comply by reason of his Baha’i faith.

   [25]   Ibid.

6. However, in contrast to the applicant’s submissions to the Tribunal, the sentencing statement by Judge [states]:[26]

   ‘He reported that he did not suffer from any learning difficulties. He said that he enjoyed attending school. He said that he achieved good grades and was active in extra-curricular activities in the school environment, for example sports. He said that he left school in what would have been equivalent of year [grade] as a result of him ‘wanting to hang out with friends,’ and that his father said to him, ‘I’ll pay you to go to school.’ However, he said he did not want to return and then commenced work with four of his brothers in the welding industry.’

   [26] Sentencing Statement Judge [name], R v [Applicant] [in] March 2015; [Department file number] f95

7. While the Tribunal accepts that the applicant may have suffered for some discrimination while he was attending school as a result of his religion, it appears from [the Judge’s] statement that he was not greatly affected by any discrimination he may have experienced. As such the Tribunal places limited weight on the applicant’s evidence in relation to any persecution he may have suffered at school as an indication of future harm. 

8. While the Tribunal accepts that Baha’i face both official and societal discrimination, the applicant’s evidence to the Tribunal was that he had worked consistently as [an occupation] in Iran. He said that while he did experience some discrimination in jobs being awarded to a Muslim rather to him as a Baha’i, he was able to work and operate his business in Iran. It appears for the statement of Judge [that] the applicant made a conscience decision to commence work in his family’s business rather than to continue with his studies. As such the Tribunal finds that the applicant was not denied economically by reason of his religion, either by his employment or educational opportunities, of the kind that would constitute serious or significant harm.   

9. In addition the applicant refers to instances where he had been previously detained in Iran.  The applicant says that in 1997 he was detained for a period of 30 days and tortured by being hung form his arms and feet. However, he says that the reason for his detention concerned the taking of bribes and states that he believes his detention was as a result of mistaken identity rather than his Baha’i faith.[27] While the Tribunal accepts that he may have been detained as described, the reason for his detention is appears to be related to unrelated to a criminal activity (albeit that his evidence was that he was wrongly accused) and not as a result of his Baha’i faith. Accordingly, the Tribunal places limited weight on the applicant’s evidence in relation to his detention as a result of his mistaken identity as an indication of future harm.

   [27] [Title] , Applicants Submissions dated 23 October 2017 p.3

10. In addition his says that in 2000 he was detained by the Etralaat with his family for approximately three hours. He says they were questioned about perceived attempts to convert Muslims to Baha’i but released unharmed upon promising not to discuss their religion outside their faith.[28] While the Tribunal accepts that he was detained with his family as described it appears that he was not seriously or significantly harmed for the purposes of s.36 of the Act. Accordingly, the Tribunal places limited weight on the applicant’s evidence in relation to his detention as an indication of future harm. 

    (ii)          Return visits

    [28] Ibid.

11. Finally, the applicant in his protection visa application and oral evidence to the Tribunal indicated that he had returned to Iran on several occasions since arriving in Australia. The applicant’s evidence was that he returned to Iran on several occasion to visit his sick father and help his wife obtain her passport. In 2011 he was detained at the airport but released unharmed with the assistance of his brother.[29] While the applicant accepts that the applicant was detained at the airport a described the Tribunal does not consider that the fact he was detained once after having returned to Iran on multiple occasions constitutes serious harm.  The Tribunal considers that the applicant’s and his willingness to return to Iran on several occasions, without any significant event, indicates that the applicant himself did not consider that he faced a real chance of serious or significant harm upon his return to Iran. Accordingly, the Tribunal places little weight on the fact that he was detained at the airport in 2011 as an indication of future harm. 

    (iii)         Delay

    [29] Ibid.

12. In addition despite having arrived in Australia [in] November 2006 and having been detained, including on one of his return trips to Iran, the applicant failed to make any application for protection until 20 February 2017. The delay in lodging the protection visa is of serious concern to the Tribunal.  The Tribunal notes that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution.[30] The applicant states that he did not make any claim as he was in the country on a spousal visa and in no fear of being returned to Iran. However, despite his spousal visa being cancelled on 9 May 2016 he did not make any application for protection until 20 February 2017 and only in circumstances in which he was likely to be returned to Iran. The applicant’s delay in making his application for a protection visa together with his repeated return trips to Iran indicates that he did not hold a fear of being persecution or significantly harmed upon his return to Iran.

    [30] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J.

13. The applicant says that the government is aware that he is Baha’i and as a result they will capture and torture him due to his beliefs. He says that he will be starved, beaten, browned, burned, stoned and possibly killed. However, while the Tribunal is prepared to accept that the government know or at least are capable of knowing that he is Baha’I, due to the fact the he did not suffer serious harm in Iran prior to coming to Australia, that he has returned to Iran on multiple occasions without serious harm and that he was not active in his faith the Tribunal does not accept he will be captured and tortured as claimed.  

14. Therefore, while the Tribunal accepts that the applicant is Baha’i, given his limited involvement in the Baha’i community, his unimpaired educational and employment history, his limited experience of past harm and frequent return visits to Iran since his arrival in Australia, in all the circumstances, the Tribunal does not accept that the applicant has a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act, in the event he is returned to Iran  by reason of his Baha’i faith. As such, the Tribunal finds that there is not a real chance the applicant will suffer serious harm on his return to Iran by reason of his Baha’i faith.

(b)The Applicant’s drug convictions.

1. The applicant contends that he is part of a particular social group being described as ‘having a criminal record in Australia for drug offences.’

2. The Tribunal accepts that the applicant has a criminal record in Australia dating back to December 2011 for offences relating to damage to property, driving under the influence and manufacturing drugs and that he was sentenced to four years and six months imprisonment. The applicant claims in his oral evidence that his involvement in drugs commenced when he arrived in Australia and that he did not take drugs in Iran.

3. The Tribunal accepts that the Iranian authorities treat drug users very differently to that of drug dealers and drug manufacturers. The applicant claims that the authorities in Iran take a very harsh stance on drug dealers and he believes that, despite having served his sentence in Australia, upon his return to Iran he will be re-prosecuted. He fears that if this were to occur he would face the death penalty as it applies to drug dealers in Iran.

4. The applicant states that it is not uncommon in Iran for people who have been convicted in other countries and served their prison sentences to be detained and re-prosecuted once they return to Iran. The applicant did not provide any evidence of this occurring and the country information provided did not support the application’s contention that people who have been convicted of drug charges in a foreign country and served their sentence in that country are detained and re-prosecuted upon their return to Iran.

5. In considering the applicants claim the Tribunal has had regard to the country information provided that indicates there is no real risk of double jeopardy in Iran.[31] The issue was raised with the applicant during the course of the hearing. The Tribunal indicated that it had not yet come to any view as to whether double jeopardy applied in Iran and I particular to the applicant. It invited the applicant (through his representative) to make any further submission he deemed appropriate on the issue. Save to repeat his claim and state that he believed that he would be detained and re-prosecuted for the drug crimes upon his return to Iran, the applicant did not make any further submission on the issue of double jeopardy in Iran.  

   [31]   Home Office; ‘Country Policy and Information Note Iran: Fear of Punishment for Crimes Committed in other countries (‘Double Jeopardy’ or re-prosecution)’ Version 1.0; January 2018; >

   Iran is a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 14 (7) of the ICCPR states:[32]

   ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted with the law and penal procedure of each country.’

   [32] International Covenant on Civil and Political Rights (ICCPR). Article 14 (7).

6. Double jeopardy (or re-prosecution) is covered by Article 7 of the Iranian Penal Code (‘the Code’). It states that any Iranian national who commits a crime outside Iran and is found in, or extradited to, Iran shall be prosecuted and punished in accordance with the laws of the Islamic Republic of Iran.

7. Therefore, while the provision of Art 7 of the Code provides that Iranian Courts will not have jurisdiction to re-try a matter which had occurred outside Iran, the principle of double jeopardy only applies to ta’zir, crimes whose specific cases and punishments are not prescribed in sharia law. Almost all ta’zir crimes are dealt with in Code and the judge may apply the punishments prescribed in the code. Crimes punishable by ta’zir include bribery, money laundering and those covered by Iran’s anti-narcotics law.[33] As such crimes involving drug trafficking will generally fall under the anti-narcotics law and will not be subject to re-prosecution unless they involve attacks on Iranian national interests (i.e. breaking into diplomatic and consular premises, physical aggression and/or assault on Iranian diplomatic and consular officers) or involve activity which is deemed to be openly hostile to the Iranian regime, that is public speeches, demonstrations or rallies.[34] There is no suggestion or evidence by the applicant that he engaged in any such behaviour that was openly hostile to the Iranian regime.  

   [33] [33]   Home Office; ‘Country Policy and Information Note Iran: Fear of Punishment for Crimes Committed in other countries (‘Double Jeopardy’ or re-prosecution)’ Version 1.0; January 2018 @ p.5

   [34] Ibid.

8. Crimes punishable by Hudad, which include illicit sex and sodomy, or punishable by Qisas, for example murder, may be liable to re-prosecution in Iran in circumstances where the victim of the crime or a party who has sustained damages makes a complaint to the Public Prosecutor Office and the Penal Court. Therefore, to initiate a double jeopardy proceeding there must be a private complaint and the crime must be Hodoud or Qesas.[35] Therefore, given the limited scope of offences to which double jeopardy may apply and the specific exclusion of those punishable by ta’zir there is no real risk the applicant will be re-prosecuted for his drug offences in Australia upon his return to Iran.[36]

   [35] OpCit p.12

   [36] OpCit p.4

9. Therefore, in circumstances where the applicant is an Iranian national having been convicted and punished of drug offences (including drug manufacturing) in Australia, the applicant cannot be punished for the same offences in Iran.[37] Accordingly, the Tribunal finds that there is no real chance of the applicant being re-prosecuted for the same drug offences for which he was convicted and punished in Australia.

(c)The applicant as a Baha’i with drug convictions.

[37] Op Cit p.14

1. The applicant claims that he faces a very real risk of serious harm if he was to return to Iran due to his combined profile as a Baha’i person with drug convictions (including convictions for the manufacture of drugs). The applicant claims that as a person with drug convictions he will come to the authorities’ attention and as a Baha’i person will be detained and persecuted.

2. The applicant claims that his drug related offences in Australia will be known to the Iranian authorities because there was media coverage of the events leading to his arrest. The applicant referred to a newspaper article in which the circumstances of his arrest are described. However, the article does not mention the applicants name or the name of anyone else involved in the circumstances of his arrest. In addition, the article is approximately [age] years old. As such, the Tribunal considers that it is extremely unlikely that the Iranian authorities will be aware of his convictions by reason of the newspaper article. Therefore, in circumstances were the applicant has been able to return to Iran on multiple occasions without incident in the past the tribunal does not accept the applicants evidence that the authorities will be aware of his convictions in Australia as a result of the newspaper article.  Accordingly, the Tribunal finds that the Iranian authorities will not be aware of the applicant’s criminal offences in Australia by reason the newspaper article as claimed.

3. In addition, the applicant says that he has a relative, [Mr A], who has always been aggressive and vindictive towards him. The applicant evidence was that [Mr A] works for the Iranian Government as a general in the Special Forces and believes that [Mr A] will inform the Iranian authorities of his drug convictions upon his return to Iran. The applicant says that [Mr A] has told him that he knows about the convictions and has evidence of same. However, the applicant did not provide the Tribunal with any evidence as to the identity of [Mr A], his relationship with the applicant. Further, the applicant did not provide any evidence of his conversations with [Mr A] or how it is alleged that he had information as to the applicant’s convictions. In the absence of any substantive evidence in relation to [Mr A’s] animosity toward the applicant, the Tribunal does not find his evidence convincing and does not accept the applicant’s evidence in relation to [Mr A].

4. In addition the Tribunal notes that the Department of Home Affairs does not disclose criminal convictions to the Iranian authorities.

5. The Tribunal is mindful of the country information which indicates that people with a political profile or activity may be falsely prosecuted on drug charges. The Tribunal does not accept that the applicant has the profile either politically or religiously that would lead the Iranian authorities to re-prosecute the applicant on drug charges. The applicant does not claim to have a political profile and the tribunal does not accept that the applicant has the religious profile as claimed.

6. Therefore, the Tribunal does not accept that the Iranian authorities will have knowledge of the applicant’s convictions in Australia. Accordingly the Tribunal finds that the applicant does not have a well-founded fear of persecution in the event that he returns to Iranian by reason of being a Baha’I person with drug convictions.

(d)Applicants Debts

1. It is submitted that the applicant owes significant amounts of money to friends in Iran which he is unable to repay. He fears that his debtors will bring him to the attention of the Iranian authorities. By the applicants submission dated 23 October 2017 the debts are said to be money owed to friends and borrowed for the purpose of funding the applicants ‘drug habit.’ The applicant did not articulate how the harm he fears from his creditors relates to a well-founded fear of persecution for the purposes of section 5J(1) of the Act.. In any event the applicant conceded at the hearing that, given the passage of time, he was unlikely to be harmed by reason of the fact that he owes money to friends in Iran.

1. Accordingly the Tribunal finds that there is no real chance the applicant will suffer serious harm if he returns to Iran by reason of the fact that he owes money to friends in Iran.      

(e)Imputed political opinion as a failed asylum seeker

1. The Tribunal has considered that if the applicant is removed from Australia to Iran as a failed asylum seeker and/or a forced returnee the possibility that he may be imputed with an adverse political opinion or imputed with a political opinion of being opposed to the Iranian regime and having alleged persecution by the regime abroad.

2. However, the advice from DFAT[38] is that while it is possible that a known dissident may be prosecuted, it is unlikely that an individual simply claiming asylum overseas will be prosecuted as an asylum seeker. The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result. The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities. The applicant’s passport on the department file expired [in] 2012.[39] As such the Tribunal accepts that the applicant does not currently have a valid passport. The Tribunal further accepts that the applicant may be asked questions both in Australia at the time when his departure is being organised (voluntary or involuntary) and upon his return to Iran.

   [38] DFAT advice dated 9 June 2018

   [39] [File number] f51

3. The Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case ‘examined in detail’, as a forced returnee. 

4. The Tribunal has not accepted the applicant evidence that he will be re-prosecuted for the drug offences (including drug manufacturing) in Iran. The applicant has been able to depart Iran without difficulty or suspicion in the past. While he has been stopped and interrogated on one occasion, the period of his detention did not constitute serious harm. In addition the tribunal has found based on the applicant evidence that the risk of the authorities discovering his criminal conviction is remote. Therefore, in the event that the applicant is stopped and interviewed, the Tribunal finds that there is no real chance he will suffer serious harm as a result of adverse political opinion or that he will be imputed with a political opinion of being opposed to the Iranian regime by having alleged persecution by the regime abroad.

5. Therefore, the Tribunal does not accept that there is a real chance the applicant will be persecuted on return to Iran, either now or in the reasonably foreseeable future by reason of his membership of a particular social group, his political opinion or any other Convention reason. 

6. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iran, there is a real chance that the applicant will suffer serious harm.

7. The Tribunal is therefore satisfied that the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is not a person to whom Australia has protection obligations.

Applicant’s complementary protection claim

1. The applicant claims that, without conceding in any way his claims under section 36(2)(a) of the Act  that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm from the authorities on return his return to Iran on the basis of his claims detailed above. The Tribunal notes that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. [40]

   [40]    MIAC v SZQRB [2013] FCAFC 33,

2. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicants claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.

100.The Tribunal has considered if there is any reason to believe, the applicant  will face a real risk of significant harm as contemplated by s.36(2)(aa). Significant harm is different from the concept of serious harm as required by s.5J(4)(b) in the context of s.36(2)(a).[41]  Nevertheless, for the reason stated above in relation to each claim, the Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicant does not have a real risk of suffering significant harm pursuant to s.36(2A).  As such, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in the event he returns to Iran.

[41]    In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller,16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

101.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

102.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk he will suffer significant harm as required by s36(2)(aa).

CONCLUSIONS

103.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(1)(a). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

104.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complimentary protection criterion in s.36(2)(aa). and is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

105.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

106.The Tribunal affirms the decision not to grant the applicant a Protection visa.

Jason Pennell
Member