1821244 (Refugee)

1821244 (Refugee) [2022] AATA 1977 (4 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821244
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:4 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 May 2022 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Iran – ethnicity, religion and imputed political opinion – Kurdish Shia Muslim accused of being member of political/militaristic groups – detained, questioned and harassed by authorities – workplace harassment and discrimination – son’s refusal to support Basij and Westernisation – no appearance at hearing or other response – insufficient evidence to support claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIEA v Guo (1997) 191 CLR 559
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 7 September 2017.
The applicant failed to appear before the Tribunal on the day and at the time and place at which he was scheduled to appear to give evidence and present arguments. Nor did he or his agent contact the Tribunal to explain his failure to appear. Pursuant to s. 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant made the following claims:
a.Entry Interview Statutory Declaration of 16 February 2011
I was born in Khoram Shahr, Khuzestan, Iran. I am a citizen of Iran. I am Kurdish. I am Shia Muslim. I am married. I have [sons] and [daughters].
Why I left Iran
About 4 years ago, my son [Mr A], who was in high school at the time, became a member of the Basij. About a year later, [Mr A] said to me words to the effect "I do not like the Basij. I've seen something that I do not like. They are doing the wrong thing. I do not want to be with them anymore".
About 4 days later, members of the Basij came to our house looking for [Mr A]. [Mr A] used injuries he had sustained from a car accident as an excuse for not being involved in the Basij. [Mr A] told them that once his injuries had improved he would return to the Basij; this was just an excuse, he had no intention of returning to the Basij however he was too afraid of telling them this.
Members of the Basij continued to come to our house and continued to harass [Mr A] for not returning to the Basij. [Mr A] continued to use his injuries as an excuse. One morning we woke up and saw graffiti on our house. It read words to the effect "[Mr A] you are a paedophile. You are a homosexual. This rap is a rap for gays". I believe the Basiji did this because [Mr A] had not returned to the Basij.
About 15 days later, Basiji slapped and punched [Mr A] in the face. They also hit him in the face with an object - I am not sure of what type of object they used however [Mr A] still has a scar [from] this incident. About 20 days later, [Mr A] started university. At university, the Basij continued to harass him; they looked for any opportunity to harass him. Sometimes they used [Mr A] 's "westernisation" i.e. his clothes, hair, music etc. as a means of harassing him. Other times they fabricated things to get him in trouble. For example:
• He was harassed for not paying school fees when he had already paid the school fees in full.
•The Basiji regularly provoked him; they were trying to find an opportunity
to get him kicked out of the university.
On one occasion my wife went to the university and tried to resolve the problem however the harassment continued. The harassment intensified so [Mr A] decided to drop out of university - this occurred about 5 months ago. Even after dropping out of university, the harassment continued so he fled to [Location 1]. [Mr A] is currently in hiding in [Location 1] however he knows that the Basij will eventually find him because they have connections all over Iran. Thus he is currently making arrangements to leave Iran.
[Mr A] is "westernised". From the music he listens to (and rap music he performs and has released), to the clothes he wears and even the ideas he has. The Basij will eventually find him and once they do they will target and harass him because (i) he refused to continue supporting them; and (ii) he is "westernised". After the Basijj find [Mr A], it will only be a matter of time until they target and harass our family i.e. my wife, children and me because of [Mr A] 's actions. My wife, daughter and I also left Iran due to problems with my employer.
I believe that the Basij will target and harass my family and me because [Mr A] (i) refused to comply with their requests; and (ii) they perceive him as "westernised".
b.Subsequent, undated statutory declaration
The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration.
I fear that if I was forced to return to Iran, I would be seriously harmed because of the Iranian authorities' belief that I am a member of political groups such as Komeleh, Pishmargeh, Mojahedin and communist groups. I fear this harm from the herasat. When I say the herasat, I also mean the basij and the sepah (Islamic Revolutionary Guard Corps). They have all got the same control in Iran. The herasat and the basij are big organisations - they are not just intelligence organisations. They also have control in areas of life like factories, lands, agriculture. The basij have control in every aspect of the whole country and economy.
I was born in Khorramshahr City, Khuzestan Province, Iran in [Year]. I am of Kurdish ethnicity and my religion is Shia Islam. I am separated from my wife, and I have [children]. I am in contact with my children in Iran. I talk to them on the phone once every 2-3 days. Most recently I worked as [an Occupation] contractor repairing [products] in Iran. I had my own workshop. I do not work in Australia, because it is my understanding that I do not have any work rights.
I came to Australia by boat, arriving in 2010. I arrived with my wife and daughter. My wife and I are now separated. We separated when we were in Perth. We had lived in Perth for about 3 months before we separated. My wife just decided to leave me. 4 months after the separation, we got back together for 2 months. But then we separated again. We're not officially divorced. I have never asked for a divorce. My daughter [lives] with my wife. I'm not exactly sure where my wife lives now.
I speak Farsi, and have limited ability in writing Farsi. I also have difficulties with giving exact dates for events. This is because of my limited education as well as because the calendar in Iran is different from the calendar in Australia. I did not go to secondary school - only primary school. I only went to primary school until year [grade range]. I don't remember exactly. I left primary school after I moved to live with my uncle in Kermanshah. My uncle looked after my sister [and] me because my mother was unable to care for all of my [number] siblings. There were too many children so it was too hard for my mother. When I was away from my mother, I didn't feel good and so I didn't go to school. I would play at home instead. My uncle's wife, who was a nice lady, tried to get me to go to school, but I did not want to go to school. I was interested in doing handyman jobs and I would help my uncle around the house with handyman jobs.
When I was [age], I started working as an apprentice at my [sister]'s husband's [workshop] in Khorramshahr. I learnt a lot about [jobs] there. I would do things like work on [products] and [components of products], and reading drawings for the [components]. The [products] that I worked on at that workshop were for [workplaces]. They were very big [products]; as big as a [comparison].
When I was about [age], I got my own workshop in Khorramshahr. I was self-employed and called my business "[Business name] " for the rest of my career. I had my own business when I lived in Kermanshah, Bandar Abbas, and [Town]. I was contracted by the [workplace] companies to do big important jobs on their [products]. For example, I worked for the city of Abadan (in Iran), doing work for [other workplaces]. I also did work for big international companies. I worked for private, international companies like [Company names]. When I dealt with the international companies, I would talk to an Iranian agents who worked for the company. The foreign [companies] would ask for me to fix the [components] for the [products] because they knew that I was good at fixing the [products]. I also worked for the government [workplace companies] called [Name 1]. I did [components] on their [products]. I also repaired [components].
I have been in prison in Iran three times. I was put in prison by the herasat, because they suspected I was involved in political groups, and because I associated with people in political groups. The first time I was put in prison was when I was living in Kermanshah. It was about 1982, but I'm not sure. I had to deliver some products I had worked on to [Location 2]. [Location 2] is about 1 hour's drive from Kermanshah. I had been contracted to do [work] for an organisation called [Name 2]. This is a government organisation, specifically a revolutionary type of organisation aimed at rebuilding the country after the revolution.
The herasat operate hand in hand with them. After I delivered the work, namely the [component], to the government organisation [Name 2], I went to my friend [Mr F]'s house in [Location 2]. Outside my friend's house, I noticed the herasat in an unmarked car. I had never had any interaction with the Herasat before. Three members of the herasat knocked on the door and my friend [Mr F] answered. They hersat said, "Where is [the applicant]?" My friend went and got me, and took me to the door. The herasat asked me, "Are you [the applicant]?" I said, "yes". Then they forcibly walked me to the car. When they put me in the car, they blindfolded me. Because I was blindfolded, I didn't know exactly where I was being taken. We drove for about 30 minutes. I was frightened and did not ask any questions in the car.
I don't know exactly how the herasat knew I was at my friend's house. I think that I came to the attention of the herasat because I was doing important technical work for [Name 2], and the herasat started monitoring me. I think they followed me to my friend's house after I delivered the [work] to [Name 2]. The herasat operate in a similar way, and are basically the same as the basij. They are different organisations but they work closely together.
When I was in the car with the herasat they questioned me about the Pishmargeh. They were saying that I was involved with this group. They wanted me to talk about what the Pishmargeh were doing. I told them that I was not involved with the Pishmargeh, and that I don't know what they do. The herasat also accused me of being involved in the political group Komeleh. I know that these groups are semi-militaristic groups. They have their own organisation against the government. They are basically Khurds.
When we arrived at the destination, I was put in a cell. I was by myself in the cell. There was no window and the walls were dark. There was a small light in the cell which would be turned on sometimes. I was told that I was in 11am prison. In my cell, I could see a piece of someone's skull with hair stuck on the black wall with blood. They had tortured people in my cell. I was frightened when I saw this.
Each night, at about 2 or 3 am, I was taken from my cell to an interview room, where I was questioned for about 1 hour by the herasat. The herasat accused me of working with Pishmargeh and Komeleh. They questioned me every night but got nothing out of me because I was not involved in these groups. Each time I was taken from my cell to the interview room, I was blindfolded. The guards would shove and push me on my back as we walked along the corridor to the interview room. The guards called me obscene names, and made comments about me being Kurdish and ignorant. For example, they said, "you are animals, you are a donkey, you are not like human beings," or they would say, "your mother is a whore." When they spoke to me like this I felt naturally very upset but I could not do anything.
I was in the prison for about 2 months. They gave me food twice a day, but I only ate one meal per day because I had lost my appetite because I was so distressed. The food was a sort of slop or soup. There were no windows in the cell. For most of the time, I was alone in the cell. At one point, a few other people joined me in my cell, but they only stayed a few days before the guards took them away. There were only men in the prison. I don't know why the other people were in the prison. The prisoners didn't talk to each other much because we were all terrified. Sometimes the prison guards sent other prisoners to the cell to try to spy on other prisoners, to try to get information out of them. In the middle of the night, like 3am, I could hear the crying and screaming from other prisoners. I could hear someone shouting, "You are going to get executed in an hour. You better confess." This was to make the prisoner weak and lose their spirit. The guards would execute the people in the jail early in the morning at 6am. They would form squads to shoot people. I couldn't hear the shooting from my cell. But I could hear the people who were being taken from the cells to be executed, and they were sobbing and screaming and begging.
The reason I was released was that my sister, [Ms G], came to the jail to petition on my behalf. [Ms G] knew I was in jail because she noticed I was missing when I did not return from [Location 2]. She went to my friend's house in [Location 2], and my friend told her that the herasat had taken me to prison. [Ms G] pleaded and made objections to the herasat and prison guards, and asked for me to be released. Then one day I was told to collect my clothing and things because I was leaving. When I was being released, the herasat said, "Your file will be left open. It's not closed."
After I was released, I went back home and lived in Kermanshah. I was in a lot of distress. I was still working in my workshop, but I couldn't work much because I was not well because of having been in prison. I felt frightened and I couldn't sleep. When I did sleep, I would be talking to myself in my sleep. I felt depressive, and upset.
The herasat kept harassing me in my workshop. They would co.me to the workshop and question me. Or they would take me to their car and question me in their car. This would happen every couple of months. They would ask me questions about the groups Pishmargeh and Komeleh. They would say, "We know that you are cooperating with these groups, and that you convey messages from the government to these groups." They would threaten me and say, "If you do something wrong, we will take you away." They only visited me at work - never at home.
After two years of this harassment from the herasat in Kermanshah, I decided to move to Bandar Abbas to make a fresh start. The second time I was in prison was when I was living in Bandar Abbas. It was about 198 , but I'm not sure exactly of the dates. I had been living in Bandar Abbas for about 1 year before I was taken to prison. At the time, I was working as [an Occupation] contractor on [workplaces]. I had a workshop in Bandar Abbas, where I worked with my nephew. On the [workplace], I was singled out by my co-workers because I was doing unusually difficult jobs. The [Occupation]s, who were more senior than me, did not like that I would do these more difficult repair jobs, and they began to make my life difficult by reporting on me to the herasat. In Iran, all the [companies] have got a section called herasat. The Bandar Abbas [Company], which is under the supervision of the Iranian government, has a herasat section. Because the [co-workers] reported me to the herasat, the herasat would come to my workshop or visit me while I was working on the [workplace] and ask me questions about my involvement in political groups like Pishmargeh and Komeleh.
The herasat also asked me to spy and report on other employees and contractors on the [workplace], who were [Occupation] like me, and had workshops like me. The herasat suspected that these people were involved in political groups. The herasat wanted to know whether these particular people were members of any political groups who were against government.
The reason why the herasat wanted me in particular to spy was because I was well known to the other workshop owners. I was a very good [Occupation], and I was often consulted by the other workshop owners for advice and help with work. I would also socialise with them. I had contacts with many people in the business of [workplace] and [doing a job task]. The herasat told me that they wanted me to spy because,"Everybody knows you. You're well known." I told the Herasat that I would not cooperate with them, and that I would not spy on people. In response, the herasat forbid me from working on some of the [workplaces].
The other thing that happened to me after the [Occupation]s reported me to the herasat was that I was not paid properly for the work I did. I also had problems because the [Occupation]s would tamper with the repair work I had done. Once, someone [tampered with components]. I showed this to the [Occupation]s and asked where the [component] had gone. I asked if someone had [tampered with it] on purpose. The [Occupation] s denied doing this.
One day, when I was at my workshop, the Herasat came in a car and took me to jail. They blindfolded me when they took me, so I did not know where they were taking me. When we arrived at the prison, I was told that I was being held at the prison of [named location]. The herasat questioned me over and over at the jail, every night from 1am-3am. Sometimes they questioned me for I hour, sometimes 2 hours. The herasat would ask me what groups I was a member of. The herasat would tell me that if I agreed to spy for them on the other workshop owners, I would be released. I was blindfolded when they questioned me. I did not know how many people were questioning me. They told me that I was put in jail because I wasn't cooperating with them; that is, I refused to spy for them.
This second time in jail was just like the first time in jail. I was not charged with any offence, and I was not given a trial or any kirid of hearing. I was in jail for a few months. Maybe 3 or 4 months. I was in a cell by myself, except for a few days where there were 2 or 3 other people. There was no window in the cell, and the walls were painted black. The only time I was allowed to leave the cell was when I was taken to the bathroom. When I was taken to the bathroom I was blindfolded. I was given 2 meals a day, but I usually only ate 1 meal a day because I was so distressed by being in jail that I lost my appetite. I did not know if I was underground - it was all dark and no natural light.
The guards treated me very badly because I was not cooperating with them by telling them about the other workshop owners. They would shove me and push me when they took me to the bathroom. They were very rough and very aggressive. They called me insults because of me being Kurdish. They would ridicule me and say obscene words and profanity, belittling me. For example, they would say "Kurdish people are illiterate. They don't understand, they cannot think." The guards would kick and push and shove me. I could hear other people screaming and being tortured. In the mornings they do executions, and I could hear the people being taken to be executed.
While I was in prison, I did not have contact with anyone from the outside world. I was not allowed to contact or see my family. My wife knew I was in prison because she went to my workshop and my nephew told her that I had been taken away by the Herasat. After I was released, I lived in Bandar Abbas for 7 years. In that time I was often harassed by the herasat. They prevented me from doing any work for the government after I left prison. They would also still question me about involvement in groups, and ask me to spy on other workshop owners.
For 7 years I lived off my savings, and I did a bit of private work. Eventually, I moved to [Town] in 1993 because I had no work and because of the harassment from the herasat. I thought I could get away from the problems I had with the Herasat. When I moved to [Town], I bought a workshop and started work. However, the herasat found me and continued to harass me. Because of my history in Bandar Abbas, the herasat in [Town] knew about me. They had my file. They contacted me by coming into my shop in [Town] in person. There were three members of the herasat. They tried to bribe me by saying, "If you cooperate with us and tell us about anti-government groups or people involved with them, you will get the best jobs in [Town]." They wanted to know about any group that is against the government, and they believed that the other workshop owners in [Town] were involved in these groups. The groups that the herasat particularly wanted to know about were Mojahedin and Communist groups. People from these groups were in contact with me through my workshop as they owned other workshops in the area so the herasat said, "You know these people so tell us about them." I was not in these groups or any group, and I did not want to report on the other workshop owners. They came to visit me at my shop in [Town] about 6 or 7 times.
The third time I was sent to jail, it was 2003 and I had been working on the [workplace] which belongs to the [Government Department] in Iran. There were both foreigners and Iranians on the [workplace]. The foreigners were from [Countries] - a mix. I would mix with these people because I was working [at the workplace] itself. A person named [name deleted] who was [an Occupation] asked me to repair the [component] in the [product] of that [workplace]. I said, "Yes I can do this, I guarantee the job." So I repaired the [product]. Then I [stayed at] the [workplace for a time], for the purposes of testing the [product]. While I was [at the workplace], the herasat phoned my home and left a message with my wife. When I got home my wife told me that the herasat wanted to talk to me. I went to see the herasat the next day at their office in the [department]. Each Iranian Department has herasat which looks after controlling people in the workplace. I went because I had to go - the herasat was at my workplace and I had to get the approval from them that I had finished the work, in order to get paid. When I got to the herasat office, I asked what is going on. They said, "You have to co-operate with us. We want information about the other shop owners who repair [products]. We will compensate you for the information by giving you the best jobs in your field for the [company] and government [company]." Then the herasat asked me to leave.
Four or five days later, in the afternoon, I received a phone call from the herasat in my workshop and they asked me to come and see them again the next morning. I went to the herasat office, and they put me in a car and took me to prison. I was blindfolded in the car, and they asked me "Why don't you work for us?" They wanted me to spy for them. When I arrived at the jail, I was told that I was at [Location 3] prison. I believe that the reason why I was taken to prison by the herasat was because I did a lot of important work for the government and foreigners and was well connected with other workers in the industry who were involved in anti-government groups. I also socialised with these people.
I spent about 2 months in prison in the [Location 3] prison. I was not charged with anything, and I did not have a trial. The conditions in the prison in [Location 3] were very similar to the other prisons I have been in. There were black walls, and I was blind folded most of the time. Every night the herasat would question me. They insulted me, used profanities and bad words. They used the same kinds of insults as they used when I was in prison before. They would also hit me on the back of the head when they were walking me down the hallway to the toilet. While in prison, the herasat also questioned me and tried to persuade me to work with them by spying on others. When the herasat interrogated me in prison, they would say to me, "You know these people". They meant that I knew people in the [workplaces] and the [workplace-related] business.
When I was released, I lived in [Town] for 7 years before I came to Australia. During that time, the herasat continued to harass me by asking me questions about other workshop owners, and asking me to spy on them. Initially after I was released, they would come 2-3 times per week. Then they stopped for a period, then the questioning and harassment would start up again. The herasat would ask me to spy on Communist groups and Mojahedin. I refused to spy. They accused me of being part of these groups. The herasat also banned me from working [at the workplaces]. I got a little bit of private work from my workshop but not much. The herasat would question me at work and at home. I decided to come to Australia because I heard from other families that it was a good place to live. I talked to my friends and I started thinking about going to Australia in about 2006 or 2007.
I saw a psychologist in Perth and was treated for trauma arising from the time I spent in prison in Iran. Now, I still have terrible memories and events coming into my mind. I have trouble sleeping and I am often thinking about them which causes me distress. I am seeing a psychologist now. I have depression, anxiety, as well as post-traumatic stress disorder. In Perth I was on medication for mental health, but I don't take it anymore. I took sleeping pills but they had a side effect on my kidneys so I don't take them anymore. I have difficulty sleeping. I sleep about 3 hours at night. I have bad dreams and nightmares. I have a few friends in Australia and that helps.
I have memories of being in prison and how they treated me and the problems that I had. The way that they confronted me and treated me in the prison was so cruel and unjust. In Iran, I was a person who liked to have a normal life, without any hassle. I was doing my own job and looking after my own business. I wasn't a person who makes problem for society or anyone else. I expected that because I had a normal and quiet life, I would be OK in Iran. But they turned my life into a big problem. In the last few years in Australia, I have felt security which I never felt in Iran.
Inconsistency between my entry interview and this statement
In my entry interview, I said that I had never been detained in Iran. This was not true. I told them that I had never been detained because I was scared of repercussions if I told the truth. I was worried that I wouldn't be allowed into Australia if they knew I had been in prison in the past. My wife told me not to say anything about being in prison to the Australian officials who interviewed me because she thought something bad would happen if I told them.
If I am returned to Iran, I am afraid that I will be subjected to serious harm. Being sent back to Iran would create serious problems for me. There could take me back to prison and kill me. I know how the Herasat treat people who they have a problem with in Iran. I could be killed. Killing for them is like drinking a glass of water. It's an easy job for them - a piece of cake.
I am afraid of this harm from the Herasat. I am afraid that I would not be protected by anyone. The Herasat are the authorities so the authorities will not protect me. It's the authorities that I fear. I could not relocate to any other part of Iran because the same risk of serious harm is everywhere in Iran for me. I moved twice to escape from the Herasat. However, both times the herasat found me in my new location and put me in jail.
I cannot provide my Iranian passport because it was taken and destroyed by the people smugglers. They did this for everyone on the boat. I don't know why they did that. The people smugglers took my passport from me when I was in [Country]. When I was standing on the beach with other travellers, about to wade through the water to the boat, the people smugglers took the passports. They said, "Passports please!" I asked another traveller what this meant. He said if you don't give the passport they won't take you. I understood that if I didn't give my passport to the people smugglers, I'd be sent back to Iran. Everybody gave their passports to the people smugglers. I did the same because I was afraid of being sent back to Iran and of being harmed or imprisoned
CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant is a [Age] year-old single Iranian male. The Tribunal accepts that he is an Iranian based on a copy of the applicant’s identification documents held on file.
The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is reasonable or ‘well-founded’. The applicant is expected to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559 at 596:
‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is well-founded, or that it is for reasons of political opinion. It remains in the first place for the Minister to be satisfied and, where that decision is adverse, and a review is sought, for that applicant to persuade the reviewing decision-maker that all the statutory elements are made out.’
In this case the applicant did not attend the Tribunal hearing, nor did he provide a reason for not attending, nor request a deferral. Attempts to contact him by telephone were unsuccessful as the number appeared to be disconnected.
The information given in the applicant’s application is not sufficient to allow the Tribunal to be satisfied that the applicant faces a real chance of serious harm either now or in the reasonably foreseeable future, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm.
The applicant provided insufficient information regarding his perceived membership of Kurdish political groups in Iran, or how he was able to do contract work for the Iranian government [workplace companies], work in a number of localities in Iran and leave Iran with members of his family if he was of such concern to the Iranian authorities. He also provided insufficient information regarding his claim to be targeted because of his son’s alleged refusal to support the Basij and his perceived Westernisation,
There are also some issues associated with the applicant’s claim that raises concerns with the Tribunal regarding its truthfulness. He has been inconsistent for example, regarding his claim to have been detained by the Iranian authorities – it was never mentioned in his entry interview or in his IMR, but later formed part of his claims.
In view of the insufficient information provided and the inability of the applicant to attend the hearing the Tribunal is also not satisfied that the applicant ever faced serious harm because of his Kurdish ethnicity. The applicant was affected by the brief, inadvertent release of personal information by the Department in January 2014 however, once again there was not sufficient information provided by the applicant and did not attend the hearing and hence the Tribunal is also not satisfied that there is a real chance that he would face serious harm because of this.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever imputed with membership of Kurdish political groups, targeted for his son’s refusal to support the Basij or because his son was perceived to be Westernised, was ever of interest to the Iranian authorities let alone was detained, nor was he targeted by the Iranian authorities for being Kurdish or that the brief release of personal information in January 2014 by the Department is known or of interest to the Iranian authorities, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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 s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

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

[2022] AATA 1977

4 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing