1823098 (Refugee)

1823098 (Refugee) [2024] AATA 3533 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Morag Milton
CASE NUMBER:  1823098
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:23 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 23 April 2024 at 1:59pm
CATCHWORDS
REFUGEE – Protection Visa – Iran – religion – Faili Kurd – Kurdish ethnicity – applicant is a citizen of Iran – physical and sexual assault – imputed political opinion having being identified as a sympathiser of Kurdish separatists – a returned failed asylum seeker – frail mental state – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 31 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 23 May 2016.
The delegate refused to grant the visa on the basis that they found the applicant to be lacking credibility and did not accept the bases of claims put forward by the applicant.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant was represented in relation to the review.
MIGRATION VISA HISTORY
The applicant has had a long engagement with the Australian government that has repercussions to this decision and as such I am revisiting the applicant’s travel history.
The applicant arrived in Australia via Christmas Island on [date] July 2010. He undertook what was then a routine series of interviews and assessments including a Refugee Status Assessment, Protection Obligation Determination, and Independent Merits Review. At each stage he was found not to be owed protection. Appeals were lodged first to the Federal Magistrates Court and subsequently through the Full Federal Court and on to the High Court. At the High Court the Minister won ending the series of appeals in June 2015.
In April 2016 a request was made to lift the s 46A bar preventing the applicant from making an application for protection. This was granted by the Minister and the applicant was allowed to apply for the visa that is currently being considered before this Tribunal.
APPLICANT’S MENTAL HEALTH
A lengthy history of the applicant’s mental health challenges was provided to the Tribunal on the eve of the first hearing. In addition to the medical documents the applicant’s representative provided a summary which is reproduced in an abridged version here:
a.2011 the applicant begins to self-harm and abstains from eating while in detention.
b.2013 the applicant self-harms while in community detention.
c.2014 the applicant engages with Foundation House and the subsequent report is the only one on the applicant’s mental health that is available to the Tribunal.
d.2017 the applicant chooses to manage his own mental health challenges without professional assistance.
e.2023 [a] Support Coordinator provides details about the applicant’s ongoing mental health challenges.
This material was used in shaping how the hearing would be conducted and as noted below in weighing the evidence.
Materials not before the Tribunal
The applicant’s representative in her 2023 submission and in oral discussions at the first hearing noted that some documents remain unavailable to them. We discussed these documents and their relevance including specifically those that the representative has sought through FOI.
Three specific types of documents were identified: the applicant’s International Treaty Obligations Assessment (ITOA), documents relating to lifting the bar and those relating to Ministerial processes.
I noted that I have only received the applicant’s submission to the ITOA but not the assessment. The representative confirmed that they have access to this same submission. That the document detailing the assessment by another decision maker is not available is not relevant to this proceeding.
Regarding documents relating to the lifting of the bar, I noted that it is not often that I see more than a letter that simply states that the bar is lifted which in of itself does not contribute to the necessary considerations of the matter before this Tribunal.
As for the documents relating to the Ministerial processes, this is not available to the Tribunal nor is it expected to be, and as such its absence from any FOI request cannot be a basis for delaying the hearing any further.
As the absence of these documents do not disadvantage the applicant I determined to proceed with the matter.
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.7
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.
For the following reasons, the Tribunal has concluded that the decision should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
In the applicant’s 2017 statement accompanying his protection visa application he writes, ‘This statement should be read in addition to my previous statements and my submission dated 22 July 2015.’ To avoid doubt I note that the submissions include a written submission made by the applicant for his 2010 Refugee Status Assessment, another for his 2015 July submission for the purposes of an International Treaty Obligations Assessment and written material for his 2017 protection visa application which includes a written statement and submissions made to the current Tribunal.
The status of the statements submitted to the Department prior to the current visa application and review process beginning was discussed at the second hearing with the representative. When put to the applicant that the above quoted statement could be read as meaning that the material has become a part of this hearing the representative said that it would be preferable for the applicant to be on notice of any adverse material as he is unlikely to recall what was said and in order for her client to be able to respond appropriately that the Tribunal treat the information as extraneous from this current review process and as such if relevant be provided under s424A/AA.
In an abundance of caution, noting the applicant’s mental health status, I adopted the suggested pathway of the applicant’s representative and advised the applicant of any adverse information by way of the provisions in s424AA.
The applicant is claiming to be a Shia Faili Kurd. He is a man of [age] years who stated that he had lived his whole life in [a] village, Ilham province, Iran. Central to the applicant’s claims are his identity and specifically whether he is a stateless Faili Kurd as claimed. Relevant to this question of identity is whether the applicant has provided a convincing narration of his life in Iran.
The applicant detailed his early years in his written statements which included in summary that he was unable to attend schooling due to being stateless but that he had a friend teach him the basics of reading and writing in Farsi. He claimed to have been unable to access health care, and that he did not have official permission to work. He claimed that he worked illegally as a farm hand and labourer since the age of [age] years for a variety of farmers or alternatively since he was [age] years old. This minor discrepancy is not relevant. The applicant claimed that his parents were also farm workers.
It was noted in the Departmental decision that at the biodata interview stage upon arrival to Australia the information provided was that his parents were of a certain age, which could be inferred that they were alive but at the entry interview he said that they died when he was [age] years of age. This was a point of contention for the delegate. The applicant claimed that his parents were born in Baghdad, Iraq, but expelled in 1978 because they were Faili Kurds. He claims that they died in a car accident when he was[age] years old and since their passing the applicant is claiming to have lived with his maternal uncle who is also claimed to be stateless and the uncle’s seven children, the uncle’s wife, and the uncle’s mother (the applicant’s grandmother). I accept that the applicant’s parents are deceased and do not engage further with the apparent inconsistency arising from the biodata interview.
At the hearing further details were provided
The applicant said that he lived with his maternal uncle’s family and his grandmother who continue to live in the same house as he had grown up in. The children of the uncle with whom he lived after his parents died include three boys and four girls. He said that he doesn’t call them other than every two or three months to speak with his grandmother with the assistance of one of them. He said that none of them had left Iran.
At the second hearing the applicant described his wider family composition as including three maternal uncles who were stateless (the fourth maternal uncle being the one he was living with) and that his father had one brother who passed away the previous year in Iraq.
He said that he was not welcomed by his aunt, but otherwise he did not have problems with the uncle with whom he had lived with.
I put to him that in his 2017 statement he had written, ‘[a] Dam has been built where my family live…The houses in the area are flooding including my family’s house. My family tell me that they are being harassed on a regular basis now and get taken to the Iraqi border and pressured to leave.’ I noted that it appears his family have not moved despite the dam being built.
The applicant explained that it was only when there was a flood that their house was affected. He said that he has images of this. He said that this event was related to the dam being built but that the flood was separate to the building of the dam.
I accept this nuance as it is plausible that after the building of a dam the flood line rises, and future floods would have a greater impact on the village.
The applicant claimed that other families were being given money to leave the village due to the building of the dam but as his family didn’t have documents, they weren’t eligible for any compensation. He said that most people have taken the money and left, while some are still in the process of leaving. He said that his cousin told him about this.
In response to the discussion about the family remaining in their home the applicant said that the pressure on the Kurds is ongoing as the government targets them for political reasons as the Kurds want to create their own state. He said that even while he was living there, he was taken to the border over ten times, beaten, and then pointed towards Iraq with the words, ‘that's your country’, but the Iraqis wouldn’t accept him either as they ask for documents. When I asked how he would return from the border, he said that he couldn’t remember.
I am concerned by this apparent lapse in memory. He appears to remember what was said to him at the border decades ago and approximately how many times he was sent there but can’t remember how he would return home for any of the many times that he claimed that he was sent to the border.
The applicant described being caught watching a CD that involved Kurdish propaganda. In his 2017 statement, ten years after departing Iran, he first introduces this incident, not having mentioned it in earlier iterations of his claims. He includes it under the heading, ‘Additional Information’. He explains the consequences as being, ‘They warned me that this was a bad group and I could get in trouble for watching this CD. I did not get to finish watching the CD, because my uncle then broke it. I do not remember much of this incident now as it was a long time ago.’
The CD incident was described at the hearing as occurring about 6-7 months before he came to Australia, which would make it late 2009 or early 2010. He claims that it involved his uncle and a neighbour walking in on him watching a CD about some Peshmerga talking about living in different countries and establishing their own country including calling for other Kurds to join them.
In his 2017 statement he wrote that he obtained it from another Kurdish person in the village and that when he was watching it, his uncle together with his neighbour who had employed him and whose son was a member of the Basij walked in on him. They warned him about watching such material.
In his 2023 statement he wrote that his uncle walked in with some ‘friends’.
At the second hearing I asked the applicant who was accompanying his uncle as they walked in. The applicant said that his uncle and a friend that he didn’t know came into the room where he was watching the video, but he didn’t know their exact relationship. He claimed that his uncle worked with the ‘friend’ on a farm. I noted that at the last hearing he said that it was a neighbour. In response to this apparent inconsistency the applicant said that the neighbour coming to his house was another instance. I drew his attention to a portion of his 2017 written statement in which he specifically wrote that the person accompanying his father when he was caught watching the CD was his neighbour whose son was a Basiji. The applicant then said that it was the person who was also his employer who walked into the room and witnessed what he was watching, he clarified that it was the son of his employer that also broke his leg. The broken leg incident is discussed further below and in the applicant’s recollection is related to the neighbour and his Basiji son. I am left concerned by the applicant’s mixed recollections about who it was that caught him watching the CD.
I note that in the 2023 statement the applicant wrote with regards to another issue, ‘I do not think my uncle would have reported me to the Basij because he also had no identity documents and he would not have wanted to draw attention to himself.’ I put to him that it would be strange that his uncle didn’t want to be known to the Basij and yet he was a neighbour of a young man who was Basij and at least in one statement he had written that the neighbour, whose son was a Basiji, was a ‘friend’. The applicant responded that it was because his uncle obtained work through the neighbour that he was a friend.
Following the ‘CD incident’ the applicant claims that he encountered his worst trauma: ‘Shortly after this incident was the most serious incident that I had with the Basij. I was tortured, called a “spy”, and sexually abused. The members of the Basij tied me to a chair, beat me up, poured cold water on me, and raped me.’[1] He said that he hadn’t declared that before 2017 because he was ashamed and scared to talk about it. He claims that after that incident, which would have been early 2010, he left his uncle’s house and stayed with friends. He claims during that period he tried to commit suicide and a friend found him, took him to his uncle and that is one of the reasons that prompted his uncle to try to get him out of the country. He wrote that since being in Australia he has attempted suicide because of this incident, claiming that it has caused him a lot of ‘mental health issues’.
[1] Statement, 2023 at [36]
At the second hearing he said that those who detained him thought that he wanted to join the peshmerga, and that they kept asking him questions about the CD. The applicant said that after the CD incident his problems began including being raped and being refused to be paid for his work.
The applicant claims that around 2016 or 2017 when there was a data breach in Australia, he was told that authorities went to his uncle and asked where the applicant was. He claims that his uncle was beaten by the authorities as he could not answer the authorities’ questions regarding the applicant. He believes that they thought he had moved to Iraq or joined the Peshmerga. He is not sure if the visit to his uncle in 2017 is connected to the data breach but believes it to be connected to the CD incident.
The applicant claimed that he was regularly arrested and harassed by the Basij including being taken to the Basij base in his village. He said that this would happen after someone would report him and he’d be picked up. He said that this is one of the reasons he didn’t engage with others in the village. He said that for example, maybe because the Basij regularly rotated, different individuals hear of him and would pick him up. When picked up he would be detained, seated, and have his hands tied behind him, and he’d be asked questions about his family.

The applicant claimed in a 2023 statement, ‘I found out from some of my friends that the son of my employer was the head of the Basij in the village.’ I asked him how he could not know something like that as a family who are all stateless would surely know whose families are connected to the authorities simply for reasons of knowing who to avoid. This would be particularly so if one was a neighbour. He said that he only found out after they didn’t want to pay him for a job. He said that he wasn’t sure if they knew that he didn’t have documents.
The situation he was referring to when he spoke of finding out about his employer’s son being a member of the Basij was detailed in his 2023 statement. It followed an incident in which he was paid only a fraction of what he was due but when he sought the unpaid wages, he was apparently attacked by four people including the son of his employer who he only then learned was a member of the Basij. The attack left him with a broken bone in his leg.
But this recollection of the broken leg incident arising from a dispute over not being paid and being separate to the CD incident is in direct contradiction to the applicant’s response at the hearing that it followed the CD incident. I am concerned by the applicant’s conflicting accounts.
I suggested to the applicant that in a small village there aren’t a lot of Basij and especially not those who grew up in the village. I put to him that it is hard for me to believe that he would not have known that his neighbour’s son was working as a Basiji who, as the applicant had described, had a base in the local mosque. The applicant said that it is a village of over a thousand people and that as such he didn’t know every person’s job. He said that you may even be unsure of the person next to you. He said that he is not sure who is who.
The applicant estimated in his 2010 statement that the village had a size of about one thousand to one and a half thousand people, but he wasn’t sure. In his written statement from 2023 he notes, ‘It might not have been exactly accurate as it was based on my memory and estimation only.’ I note that in his statement from 2023 he acknowledges the delegate having information that indicated that the number was 480 as of 2006. This is a substantial difference. I favour the delegate’s information for reasons of the applicant not being a specialist in estimating populations but the government having that capacity, nevertheless, I give some scope for undocumented families increasing the official number marginally.
We discussed at the hearing how many people in his village knew that he was undocumented. He said that he didn’t know who knew and who didn’t know. I put to him that he didn’t go to school and yet grew up in a small village and that in such an environment it would be strange that his status wouldn’t be known, for example because he wasn’t going to school or unable to access medical health, people would notice and talk. He said that he would work and otherwise stay at home.
I noted that he had claimed that he was paid a fraction of what he should have been paid because, he claimed, he was undocumented. I put to him that this would indicate that people knew that he was undocumented. He said that when you don’t have any documents you have to work.
I am concerned about the applicant’s claims of growing up in a village that had several hundred people and yet claiming that he didn’t know whose families had members of the Basij and that his undocumented status was not widely known.
The applicant stated that there were about seven or eight other families who were undocumented, but he said that his uncle interacted with them, and he didn’t. He said that he didn’t need to engage with them and that were he to engage with them he ran the risk of someone reporting him and being picked up by the police. I put to him that it would be human nature to engage with people with a similar background and experiences to get to know each other. He said that he didn’t know anyone else and that it would be risky engaging with them.
The applicant said that those who knew him would call him in derogatory ways and look at him differently in part because he didn’t have parents. He claimed that he would only socialise with his uncle’s children and otherwise stay in hiding.
I put to him that he had claimed to have been a [Occupation 1][2] and questioned how he had learned the sport when he was claiming to be only working and staying indoors. He said that he started [training] seriously for the four or five years prior to coming to Australia beginning after he was raped.
[2] Statement, 2023 at [27]
The applicant said that he had practiced [the sport] before the sexual assault but after the rape he took [it] seriously. He said that he would practice in a gym/club but because he didn’t have identity documents, he would pay extra to enter the gym because their insurance wouldn’t cover him. He said that he would go whenever he wasn’t working and had the time.
I am concerned about this timeline. The applicant had explained that the rape occurred 6-7 months prior to his departure for Australia and yet in this instance he was saying that he started [the training] seriously four or five years prior to coming to Australia and tied this to the sexual assault.
In his 2010 statement he wrote that he would even be stopped from going to the mosque to pray on Fridays as the Basij would know that he didn’t have identification. I asked the applicant why the Basiji would care who was praying and noted that I hadn’t seen any information suggesting that Shia Faili Kurds can’t pray in mosques.[3] He said that when you go there, they ask about you and that they think someone without papers is a spy. He said that they think this because they believe you will do something such as advertise the idea of Kurdistan and act against the government. I asked where others who don’t have identification prayed, he said that he didn’t ask and that his uncle didn’t practise his faith. I suggested that it was odd that he wouldn’t know. He said that he didn’t go to the mosque much, just tried once, and then he was made to feel unwelcome. He said that when he was young, he prayed at home.
[3] Ongoing review of Iran country information including from Refworld, Google and CISNET
I noted to the applicant that in the DFAT report at [2.60] it states that Faili Kurds who are citizens of Iran enjoy the same rights as other Iranians. He said that this did not apply to people who have no identification.
Regarding Iranian refugee registration cards and the question of him accessing such cards, the applicant said that his family had attempted to obtain them. He said that they were told to come and pay money, which they would, but they never obtained any cards.
The applicant claimed that he didn’t know if any of the other undocumented people in the village had official Iranian refugee cards. I put to him that it would be natural that he would learn through the years whether other undocumented people had those cards either directly or through his uncle or others as it would be of interest to find pathways to legalising their stay if others had found ways. He said that his uncle would have known but he didn’t. He said that he would be afraid of someone being an undercover policeman and so he said that he would just focus on his own life.
The applicant has claimed that he has not been able to receive any education in Iran and that he learned to read and write ‘enough Farsi to get by’[4], in the same 2023 statement he writes, ‘I generally use Farsi interpreters because they are easier to understand.’ I asked the applicant how he could learn Farsi to the level that he could read and write and engage through an interpreter in a manner better than in his claimed native Kurdish. He responded that his friends taught him. He said that the reason he continues to have to engage in the visa appeals process is because of problems that arose from Kurdish interpreters. He said that his 2010 interpreter was a Sorani (Iraqi Kurd) and that when the interpreter spoke, he couldn’t understand him.
[4] Statement dated 9/8/2023
I noted that he had claimed that his family did not speak Farsi at all, as such that he could speak to a level that it was his preferred medium of discourse suggests that he had substantial exposure to it and proper training. He said that in Australia he is not in touch with Kurdish people, and that most of the time he is dealing with Persian people. When considering the evidence as a whole, the applicant’s level of Farsi language despite claiming that led a socially isolated life and not received an education is concerning.
Regarding the cost of the journey to Australia, at the second hearing I put to the applicant under s424AA that during the entry interview in 2010 when they asked about the people smugglers that facilitated his journey, he said that he spent $2,000 on a passport and $1,000 on a plane ticket. I noted that this information was relevant to the review because it undermines his claims that he was working for wages that were half or less than what Iranians doing the same work earned.
The applicant confirmed at the hearing that he had contributed $3,000 to the overall cost of the people smuggler and flights out of Iran with the rest coming from his uncle. This aligns with his claims made in his 2023 statement at [42].
I noted to the applicant at the hearing that country information from 2010 indicates that the official national minimum wage in Iran was fixed at €211.2 per month, or €2,534 per year.[5] I noted that he had claimed to be working for half or a quarter of what Iranians earned and asked how he could save so much money. He said that he had saved since he was young and that his grandmother saved money for him. I put to him that he had described his youth as being very poor and not having a lot of food[6] and yet he was claiming to have managed to save $3,000. He said that it is not a lot of money.
[5] Applicant’s statement 2023 at [18]
I put to him that information available from international sources from that period when he had claimed to have left suggested:
The source did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros.[7]
[7] >
The applicant said that the smuggler made the arrangements and that when people smugglers are involved it is like the mafia, they arrange everything and get you out. I am concerned about the applicant’s claims of having worked for a quarter or a half of the wage others earned which when compared to the national minimum wage is very low (noting that he was working in unskilled labour roles in rural communities which would pay at the lower end of the wages scale) and yet he was able to save thousands of euros by the time he was [age] years.
The applicant did not provide the passport he exited Iran with to the Department.
We discussed his knowledge of others from his village who had arrived in Australia arising from the material in the delegate’s decision.
The delegate’s decision was not provided to the Tribunal by the applicant. As such material from the decision was put to the applicant under s424AA at the second hearing.
The adverse information presented to the applicant included the Department’s assertions of his relationships with four individuals and the specific nature of these relationships. I noted that this information was relevant to the review because if accepted by the Tribunal it lends weight to a view that he has been untruthful about his lived experiences in his home village, that if accepted it could imply that he had family who were Iranian citizens and in turn his claim of being stateless was undermined.
I noted that subject to his comments that this may lead the Tribunal to determine that his claims regarding being stateless are untrue, and that it may lead the Tribunal to find that he does not face a real chance of persecution in the reasonably foreseeable future or a real risk of significant harm if required to return there. I noted that if so, this would be the reason, or part of the reason, for the Tribunal to affirm his matter.
I mentioned the name Mr [A] and asked the applicant what he knew of this man. He said that he had seen [Mr A] once at a funeral in [a suburb]. He said that his friends had told him that [A] was living previously in the same house that he was staying at for a few months and was still on the lease agreement, but that they hadn’t ever shared concurrently their residency in that [Suburb 1] (suburb) address. I noted that the Departmental record indicates that during his interview he said that they had met at the detention centre. The applicant said that this was not the case.
The interviewing officer had noted that apart from sharing the name, they had listed the same name of their father and they came from the same village in Iran (although [Mr A] had claimed to have moved to Tehran when the applicant would have been [age] years old). I asked whether it was possible that someone would have the same father’s name and not be related. The applicant said that he had never met him in Iran and that maybe some people have the same name for their father.
I noted that the Departmental decision indicates that there is evidence that they went into business [together]. The applicant denied this. He said that he only worked by himself. He said that he had never been in business with anyone.
I mentioned the name Mr [Mr B]. The applicant said that he met [Mr B], [Mr C] and [name] while in detention and lived with them in [Suburb 1]. He said that he doesn’t know where they are from. I put to him that I found it hard to believe that he didn’t know where they were from considering that he had lived with them. He claims that when they would meet and discuss where they are from, people would just answer ‘Ilham’, and there was no point to go into further details.
I noted that the department record notes that [Mr B] was claiming to be from the applicant’s village. He said that he didn’t know him. He said that he didn’t see him there, nor did he ask where he was from. He said that there is no need to ask that question as then they would ask about him.
I mentioned the name Mr [Mr C] and asked about the meaning of the name [name]. [deleted]. The delegate’s decision states that this man is also from the same village as the applicant. When this was put to him, he said that he didn’t know. I expressed surprise that he was living with someone who he knew to be a Faili Kurd and yet he hadn’t asked where he was from. He said that all he knew is that Mr [C] spoke Kurdish and that he was from Ilham. The applicant acknowledged that he had met [Mr C] in the detention centre but claimed that he didn’t ask him where he lived and that he didn’t know him from before.
I said the name Mr [D]. He said that he didn’t know the name. I noted that the delegate had identified this man as having the same mother’s name and same grandfather’s [name] as the applicant. He said that he didn’t know about that until now. He said that they may have played [sport] together in the detention centre. I put to him that while it is possible to have the same mother’s name it is improbable that one would have the same mother and grandfather’s name. He said that just because they have the same names it does not mean that they are related.
I requested from the Department the original documents of Mr [D] and [Mr A] on which they relied upon to claim that there were familial relationships between them and the applicant.
Regarding Mr [D], the claim by the delegate is that they have ‘the same mother’s name and same grandfather’s [name]’. The document provided by the Department shows that Mr [D]’s mother’s name is ‘[name]’, date of birth [year]. There is no mention of a grandfather in the document provided. I note that the applicant’s mother’s name as listed in Form 790, Part C, is [name]. Presumably the assumption by the delegate was that [the two names] align and therefore they are somehow related. It is probable that in a rural locality people with the same family name are related but it could be very distant, nevertheless, due to the size of the village I find it improbably that the applicant would not know someone even distantly related.
Regarding [Mr A] , the delegate’s decision states that the applicant and Mr [A] listed the same name of their father. In [Mr A] ’s form 866 he writes that his father’s name is [Name 1] born [year]. In the applicant’s Form 790, Part C, he wrote [Alias of Name 1] as his father’s name. There is no evidence that suggests that they are brothers or cousins, only that they have the same father’s name. It is probable that in a rural locality there are people with the same family name and that they will be related, but it could be distant. But conversely, I note that I have found the village to have several hundred people, that is not a large village especially when considering it would amount to a hundred or so families. It would be unlikely that in such a sized village two people with the same name would not know of each other even if they are distantly related.
The delegate’s decision noted that a business was registered under the applicant’s name and [Mr C] at an address the applicant had previously resided in. No evidence was provided that supported this claim despite a request being submitted and some registration documents being provided. I place no weight on this.
I noted that the village that the applicant came from was relatively small and that he had claimed that there were only seven to eight families who were undocumented and asked how it was that these other people were claiming to be from his village, undocumented and yet he didn’t know any of them. He said that he doesn’t know anyone because he hasn’t engaged with anyone. He said that even in Australia his neighbours don’t know him.
Regarding the applicant’s explanations about these four individuals who all claim to have come from the same village and his knowledge of them, I am not convinced by his responses. I do not accept that the applicant did not engage with people with whom he lived with in Australia to enquire about their provenance especially considering that they are Faili Kurds, a minority within Iran. It would be highly unusual that someone who is living far away from their home, finds others who are from the same province and of the same ethnicity and while living together on the other side of the world never at any stage engages with the question of where in that province they are from.
That the applicant ended up living with men who were all claiming to be from his village is strongly indicative that at some stage he had engaged with them about their provenance and that this brought them together. Not having done so, as he is claiming, would suggest that through random chance he ended up living with multiple people who happened to come from the same small village in a rural province of Iran.
Overall, I find that the applicant was not truthful in his responses to the questions arising from the adverse material put to him under s424AA. I find that he knew the men from his time in the village.
That he knows them undermines the applicant’s overall credibility. But it also undermines his specific claims that he did not communicate with others in his village. Specifically, the applicant said that he kept a low profile and just worked and went home. But that there are people from his village whom he came to know in Australia suggests that his network in Iran was wider than he had claimed.
Finding of fact regarding the applicant’s citizenship status in Iran

The applicant has consistently made claims that he was undocumented. This general consistency across a lengthy period of engagement with the Department weighs in favour of his truthfulness, so too do the explanations of what at first appear to be inconsistencies such as the issues arising from the newly built dam. I also place weight in favour of his claims on the micro detail of some of the information he provided such that it adds credibility to a narrative, for example when he said that compensation was being paid to some families but not his as they were undocumented or around the challenges his family faced in obtaining ‘green cards’.
But I note that there could be many reasons for consistent information across years including that he re-read his statements and simply stuck to his story. I note that his initial claims were not extensively detailed such that there would be room for much inconsistency to arise, other than at a high level. As for the micro detail, while it is often an indicator of truthfulness it may also have been a consciously contrived detail.
On the other hand, there are considerable reasons to find that the applicant is being untruthful in his claims of statelessness. He has claimed that he didn’t know others in his village and so he never found out about their status in Iran and never sought to learn about how others may have sought pathways to legitimising their stay in Iran. But through the course of the hearings, he admitted to spending considerable time in a gym where he became a [Occupation 1], he had an Iranian citizen and Kurdish friend, regarding the former with whom he stayed with before coming to Australia and the latter who gave him the CD.[8] In addition, having known men who came to Australia at a similar time as he did from the same village indicates that he had a wider engagement in society than he has acknowledged.
[8] Statement dated 9/8/2023
The applicant claimed that he was undocumented and people who are undocumented earn less than half of what documented workers would earn. Yet the applicant was able to save a relatively substantial amount of money. The overall payment contributed to the costs by the applicant was $3,000. This is not an insubstantial amount of money considering that country information from 2010 indicates that the official national minimum wage in Iran was fixed at €211.2 per month, or €2,534 per year.[9] Noting that the applicant said he was paid less than others, and that this is before living expenses are taken into account, I am highly sceptical that someone of the level of poverty and hardship the applicant has described his uncle’s family living circumstances as being during his youth could save that amount of money by the age of [age] years.
[9] >
As noted, I am concerned by the applicant’s apparent lapse in memory of how he would have repeatedly returned to his home after being forcibly taken to the border. If it was only once or twice that he was taken it would be understandable but were I to believe it was ten times, as claimed, and noting the level of detail the applicant remembered of those incidents, that he claimed not to recall how he returned lends weight to my concerns about the applicant’s credibility and his claims that he was ever sent to the border.
The applicant’s recent and new claim of the ‘CD incident’ and the subsequent assault and rape by the authorities does not in of itself lend weight to the applicant’s claim of being stateless as abuse by the authorities of people in custody is widely reported and not indicative of being limited or even targeted towards people who are non-citizens.[10] Nevertheless, I engage with it for the reason that it goes to his overall credibility.
[10] The applicant’s explanation for not having given this claim earlier was expanded on in his 2023 written submission as:
I find it very difficult to talk about this incident because I am ashamed to even mention it. The things that the members of the Basij did to me, even animals would not do to each other. I mentioned this incident to my previous lawyer, but I regretted it because incidents like this should be taken to the grave. Every time I talk about it now, I want the ground to open up beneath me and bury me. It is for this reason that I did not mention this incident earlier in the process. The shame and mental suffering that this has caused me has been so deep that I have attempted suicide because of it.
101. I am concerned by the applicant’s many and varied narrations of this event and the late nature of his claim being made. It is difficult to reconcile the applicant’s two competing claims of who accompanied his father when they caught him watching the CD. Ultimately though, the nuance of the difference, namely whether the applicant knew the friend as his neighbour or it was his uncle’s friend whom he didn’t know, is too narrow to weigh heavily. Also, the applicant’s reasoning for not raising the consequences that followed the CD incident, namely being raped, and the shame that accompanies that is plausible.
102. But it is difficult to accept that the applicant living next to a family whose son was a member of the Basij and yet, he as an undocumented person, knew nothing of this appears implausible considering the notoriety of the Basij which he claimed he knew firsthand from repeated engagement with them.[11]
[11] The applicant had claimed that in early 2017, six months before his June 2017 statement accompanying the protection visa application was written, his uncle was visited by authorities and beaten. Noting that the applicant left Iran in 2010 and that he was claiming his uncle was asked about him in 2017 following a data breach in 2014, I asked why he thought there was a persistent interest in him. He said that he doesn’t know how many times they had come searching for him. When his uncle told him in 2017 about the visit, he said that maybe the uncle had been badly harassed, and it could be that they had enquired about him regularly before then, but his uncle hadn’t mentioned it.
104. We discussed whether the visit to his uncle could have been prompted by the data breach noting the limited amount of information that was released through the breach. He said that there is no doubt as he believes that they had access to some information. I asked if he was undocumented how could the authorities find the uncle. He believes that the village name would have led to him being found. But I put to him that this information wasn’t released. I explained that it was the name, date of birth, country, and gender etc.[12] He repeated that they went there. I asked why he thought that they went to the uncle if there was a report that he was living in Australia. He guessed that maybe they thought that he is a spy from Iran.
[12] We also discussed whether there would be a reason for the authorities to continue to be asking about him through a period of seven years after his departure from Iran. I said that if not the data breach it would be strange that they would be looking for him so many years later. He said that he doesn’t know. Considering that the applicant left Iran in 2010 and the data breach was in 2014 while the applicant claimed his uncle was harassed about him in 2017 all the while, were it true, for the purpose of confirmed what apparently was known, namely that he was in Australia, is vexing. I do not accept that authorities visited the uncle asking about the applicant.
106. I note that the applicant claimed at the hearing that he had begun to practice [a sport] intensively for four or five years prior to coming to Australia beginning after being raped, but this timeline is inconsistent with his statement that the rape followed the CD incident which was 6-7 months prior to his departure. This confusion adds further concern to the applicant’s credibility.
107. When considering the evidence overall, I find that the applicant is a citizen of Iran. I find that he is a Faili Kurd by ethnicity. As the applicant is a citizen, I do not accept any of the claims the applicant has made that are dependant upon his claimed undocumented status, this includes, discriminatory treatment, physical and mental harm (including that he was detained and/or harassed by the authorities over forty times), and discriminatory hardship.
108. The CD incident and its aftermath are incidents that are unrelated to his documented status, but rather to his ethnicity as it arises from the applicant viewing a video about Kurdish nationhood as narrated by the peshmerga. The applicant made the claim for the first time in his PV application in 2017, as acknowledged in his 2017 statement. This is a considerable period of time not to have raised it through any of the numerous engagements with the Australian government. This is a reason for some concern.
109. The applicant’s psychological profile supports there being some trauma in his past while in Iran. Foundation House report from 2014 concludes with:
[The applicant]'s everyday behavioural patterns are strongly indicative of someone troubled by a sense of humiliation and self-degradation. His sense of self and emotional regulation is poor, he cannot form relationships and he readily adopts rigid thinking. These characteristics are consistent with a complex trauma psychological presentation and with his reported experiences of rejection and mis-treatment.
110. The applicant’s record of his time in Australia also has extensive references to self-harm, both attempted and ideation. While there are many possible reasons for this, including for example, an attempt to force the government to release him from detention, it may also arise from earlier psychological trauma. There is no basis upon which to dismiss the Foundation House report that clearly links his mental state to his past experiences in Iran.
111. In considering all of the evidence before me and noting that I have found the applicant is a citizen of Iran, and yet has experienced considerable trauma, I revert to country information about the situation of Kurds in the 2000s. There is considerable information that describes discrimination against Kurds.[13] Noting that it is not in dispute that the applicant hails from a majority Arab village, that the Kurds are a minority in his village and nationally, that they were historically seen as being successionists and against the government[14], it is entirely plausible that the applicant as a minority in a small rural community would have encountered mistreatment and on at least one occasion this mistreatment would have extended to physical and sexual assault. For this reason, I accept that the applicant was raped and assaulted as claimed following the CD incident.
[13] Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2009 - Iran, 16 July 2009, [accessed 20 March 2024]; Amnesty International, Iran: Human rights abuses against the Kurdish minority, MDE 13/088/2008, July 2008, [accessed 20 March 2024]; Minorities at Risk Project, Assessment for Kurds in Iran, 31 December 2003, [accessed 20 March 2024]
[14] Rubin, Michael. “What Do the Kurds Want?” Kurdistan Rising?: Considerations for Kurds, Their Neighbors, and the Region, American Enterprise Institute, 2016, pp. 27–55. JSTOR, Accessed 23 Apr. 2024.
112. I find that the applicant left the country on a false passport, a claim that he has persistently made on repeated occasions even when simply ticking a box. Why would a citizen of Iran feel that he needed to exit the country on a false passport? Because, as I have accepted, he was found viewing the peshmerga material and believed to have been labelled as an adversary, someone who was a threat. It is plausible that the applicant simply feared being caught at the airport under his own name thinking that he would have been blacklisted (even if he wasn’t) and as such paid for a false passport.
113. I also find that the applicant originally comes from a village where his uncle continues to live and has encountered some flooding due to the building of a dam.
Considerations
114. Upon return to Iran the applicant would be considered a returned failed asylum seeker and may have an imputed political opinion. The applicant said that having sought asylum would put him at risk and that if they find out about someone’s past the authorities would ask at the airport about where they have been and what they have been doing. Aligned with this fear, I note that he had written in his 2017 statement: ‘I recently read in Faili Kurdish news that a Faili Kurdish asylum seeker who returned to Iran from Finland was arrested in Karaj. He was detained for two months, before the authorities informed his family that he had died while in their custody. I fear the same will happen to me.’
115. The complete circumstances of the asylum seeker returning from Finland are not known. There are many possibilities that could have led to the Finish man having died while in Iranian custody including reasons that have no relationship to the man having sought asylum. Without further information I place minimal weight on this isolated incident.
116. I read to the applicant the below information:
2.203 In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions are not routinely investigated by authorities.
117. I place considerable weight on this DFAT analysis as it is specifically developed for the purposes of asylum reviews and is extensively researched as documented by the wide consultation process.[15]
[15] DFAT Country Information Report IRAN July 2023 at [1.4]
118. But the applicant left on a false passport as a citizen of Iran. He would be asked about how he departed and according to country information he would face a fine. Country information states that leaving illegally once is not considered a serious breach:
R.2. Post spoke to the Passport Office of the Ministry of Foreign Affairs (MFA), which is responsible for these issues. They told us that if someone had left Iran illegally they would be required to go to their nearest Iranian embassy or consulate and report this fact. They would be required to fill in some forms and pay a small fine.[16]
[16] ‘RRT Country Information Request – IRN34300’, Department of Foreign Affairs and Trade, 12 February 2009, CX220430
Although the law provides that a person can be fined on return or sentenced to between one and three years’ imprisonment if they left Iran illegally (i.e. without an exit permit), current evidence is that returnees who left Iran illegally and have no other history which would bring them to the attention of authorities (such as political activism) generally do not face prosecution. If prosecuted, the likely sentence is a fine, and there is not a real risk of imprisonment.[17]
[17] UK Home Office, ‘Country Information and Guidance: Iran: Illegal Exit’, July 2016 at 2.2.3
The law is explained as follows:
According to a new amendment of Article 34 of Passport Law (21/2/2010), any Iranian who leaves the country illegally, without a valid passport or similar travel documents, will be sentenced to between one and three years imprisonment, or will receive a fine between 500,000 and 3 million Tomans (approx £108- £650). The assigned punishment in this article is called a “Taaziri” punishment (a deterrent), the severity of which is at the discretion of the presiding Judge. The Iranian Judiciary believe that the “Taaziri” punishment serves firstly to prevent the guilty party from re-offending, and secondly to benefit society by deterring potential criminals from committing that particular crime.’[18]
[18] UK Home Office, ‘Country Information and Guidance: Iran: Illegal Exit’, July 2016 at 5.1.7
119. Country information indicates that the punishment is discretionary for the judge and that sources indicate that those with no other history ‘generally do not face prosecution.’ As such I find that the applicant faces a fine and not a prison sentence.
120. I find that the applicant would not face any other form of reprimand or harm regardless that he has been absent from Iran for fourteen years.
121. DFAT advice from its 2023 report that includes considerations of the then newly instigated protests which arose from the death of the Kurdish woman, Mahsa Amini, and involved Kurdish groups that they cannot confirm societal discrimination or violence against Faili Kurds. When this was put to the applicant, he said that he can’t say anything about Faili Kurds who are citizens as he is not a citizen.
122. While noting the extensive consultation process that was involved in the preparation of the DFAT report, I also note the material provided by the representative and other more recent reports.
123. Reporting on the situation of human rights in Iran the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran wrote in his February 2024 report:
Ethnic minorities, including the Kurds, Baluchis, Ahvazi Arabs and the Azerbaijani Turks, have consistently been harassed, targeted and victimized, denied their fundamental rights to equality and non-discrimination, and deprived of their linguistic and cultural rights and identity. Many ethnic groups, in particular the Baluchis and Kurds, also face extreme poverty, destitution and denial of the political and economic infrastructure necessary for growth and development. They have also faced high levels of discrimination in access to justice and political participation, and are denied education and employment rights, health care and basic government services. Peaceful human and minority rights activism by members of minority groups has often been deemed a threat to national security by the security services, resulting in disproportionate levels of arrests, detentions and executions.
124. The representative included the following references to country information:
a.The United Kingdom Home Office:
Although the constitution provides for equal rights for ‘all people of Iran’, in practice this is not extended to ethnic minorities. Kurds in Iran face systematic discrimination and barriers which affects their access to basic services such as housing, political office, employment, and education.[19]
[19] at [2.4.3]
125. The same report in the following paragraphs notes that, ‘In the country guidance case of HB (Kurds) Iran CG [2018] UKUT 430 (IAC) (heard 20 to 22 February and 25 May 2018 and promulgated 12 December 2018), the Upper Tribunal (UT) found: ‘Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.’ Unfortunately, the situation between when the UK Upper Tribunal considered the case and the more recent assessments cover very different periods. For this reason, I place greater weight on the recent UK Home Office assessment and less on the UK Upper Tribunal view.
126. The representative also brought to the Tribunal’s attention an extract from the US State Department report:
‘[E]thnic minority groups reported political and socio-economic discrimination, particularly in their access to economic aid, business licences, university admissions, job opportunities, permission to publish books, and housing and land rights. In a July report, the UNSR expressed particular concern that minorities, specifically those from the Kurdish minority, were disproportionally affected by arbitrary detention.[20]
[20]
127. The representative noted that in the most recent DFAT report the authors identified Kurds as facing a moderate risk of official and societal discrimination:
DFAT assesses that members of ethnic minority groups face a moderate risk of official and societal discrimination, particularly where they are in the minority in the geographic area in which they reside. Discrimination may take the form of denial of access to employment and housing, however, is unlikely to include violence on the grounds of ethnicity alone.[21]
[21] DFAT Country Information Report Iran, July 2023
128. Other country information was provided in the representative’s submission at the Departmental stage which was in 2018 relying on sources ranging in the years before that. I have reviewed those references but place less weight on them for the reason of the considerable period of time that has passed and the availability of more recent sources.
129. The applicant claimed that because of recent protests against the regime that have involved Kurds, there is no need to do anything other than being labelled a Kurd and you face harm, whether you are stateless or not. Country information was provided of Kurds being targeted but it always related to those protesting.
130. I noted at the second hearing that there are 10 million Kurds in Iran, and asked whether they are all being persecuted. He said no, not all, but there is a lot of persecution in Iran. He added that if you search you will see how many Kurds are being persecuted. But the applicant has not presented any evidence that could lead to an imputation of the applicant being politically active which is the primary profile that leads to persecution. I find that there is reason for politically active Kurds to fear harm but based upon the evidence before the Tribunal I find that there is no indication that the risk extends to Kurdish farmers or Kurdish labourers in general. As such, I find that the recent protests in Iran do not increase the applicant’s risk profile such that he faces a real chance of serious harm or a real risk of significant harm.
131. Noting that the applicant’s uncle and at least some of his children remain living in the village, specifically those the applicant speaks through when talking to his grandmother; and the applicant has in the past been able to save relatively high amounts of income, I find that despite the increased flood plain in the area, there is no evidence to suggest that the applicant faces hardships that would arise were he to return to living in his village. When this issue was raised with the applicant, he returned to the claim that due to the CD incident he would be perceived to be a spy.
132. I now turn my mind to the applicant’s previous detention in Iran and the physical and sexual assault that he experienced approximately fifteen years ago by members of the Basij. Those that were involved in the assault against him may have been from outside of his village and rotated back or they could have been from his village and rotated out since then. Some may have resiled from their views and others may have moved on (as the applicant noted some villagers took the government incentive to relocate). Alternatively, it is possible that some who were involved may still harbour disdain and distrust towards the applicant or fear him speaking of the sexual assault and beating to others. It is highly speculative to predict how something fifteen years ago will play out into the future. Based on the information before me, giving considerable weight to the fact that so much time has passed, I find that there is a remote chance that a village that has seen a depletion of residents would see among those remaining the few who were involved in the assault and even if they did remain, that fifteen years later they would remember it and him, and that they would then risk their status and standing in the community by revisiting the past and harming him again. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from this past experience of sexual assault and harm.
133. I have also considered whether the applicant’s prior action of viewing a CD would have been recorded in an official system. I have accepted that he was beaten and raped. It would not be a far stretch to accept that in addition to this harm that was inflicted on him, some record was made of his indiscretion of viewing a Peshmerga CD. The Iranian government has considerable sensitivities towards the separatists including bombing peshmerga bases in neighbouring Iraq in 2022.[22] In this context, the CD could be viewed as a recruitment tool, a propaganda video, and a call to arms. This would make the applicant a known entity to authorities. It would make him a person of interest.
[22] The applicant claimed in his 2023 statement that he has adopted Western habits and customs from having spent over 14 years in Australia, and that this will also make him stand out to the authorities. I asked at the hearing what these were. He said that he doesn’t know as his mind is not clear. Additional time was provided for him to consider the question. When he responded again the responses were about him finding a sense of comfort in Australia. When considering the entirety of the applicant’s evidence, no specific claims of Western habits or customs were articulated other than this catch-all statement.
135. The applicant left Iran when he was [age] years of age. He is familiar with the language and culture of the country. He has provided evidence that he has continued to engage with the diaspora in Australia. Without providing further evidence as to what specific Western habits and how they would expose him to risk, I find that on the evidence available to me that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any changed habits or customs.
Cumulative considerations
136. The representative in her submission connected the applicant’s various risk factors in the following manner:
As also set out at above, the applicant will be disproportionally subjected to arbitrary periodic detainment and questioning because of his Kurdish ethnicity. The applicant’s vulnerabilities, particularly the link between his poor mental health and his experiences while detained previously by the Iranian Authorities, mean that these periods of being detained and questioned by the Iranian Authorities, even if not prolonged or violent (as he fears they will be) are likely to be particularly triggering for him. The psychological harm these highly likely, arbitrary periodic detainment events are going to cause to him will amount to both ‘serious harm’ under s5J(4)(b) of the Act as well as ‘significant harm’ as ‘cruel or inhuman treatment or punishment’ (s36(2A)(d)).
137. This is a useful summary for which I thank the representative. It is a summary that remains relevant despite finding contrary to the representative’s submissions that the applicant is an Iranian citizen. The applicant is vulnerable. Some forms of harm may be tolerated by more robust members of our society, while for others the same form of harm can lead to severe pain and hardship. This difference is an accepted part of refugee law.[23] Wherever or however the applicant’s severe mental health challenges have arisen, whether from his time in Iran and/or the period in detention in Australia or the fourteen years of uncertainty, is irrelevant. What is relevant is that upon return he would register harm differently.
[23] See for example AGA16 v MIBP [2018] FCA 628.
138. The applicant upon return at the immigration counter would be identified as someone who has not exited the country legally. As noted above he would be then charge and would need to appear before a judge. Through this process at some stage his past viewing of the peshmerga CD would come to light. It would make him identifiable as someone against the regime, as someone who has sympathy for the Kurdish separatist cause if not someone who has been absent for 14 years and has acquired Western ideas, if not training, that support Kurdish separatism.
139. The applicant’s fragile mental health will make it difficult for him to answer such questions calmly and robustly and could lead him to facing additional harm.
140. I note that all of this is occurring at a highly sensitive period in Iran’s history. Not only have there been two years of protests that have seen the Kurdish minority front and centre of the regime’s harsh responses, but today we are witnessing an Iranian regime that is hyper vigilant about foreign interference due to the ongoing war in Gaza involving its proxy, Hamas. Iran has in the past labelled other Arab states as interfering in its domestic affairs[24] and the United States has a widely known long history of doing so.
[24] I find that the applicant will be detained either at the entry point into Iran at Imam Khomeini airport and placed into remand until his case regarding leaving Iran illegally is considered or alternatively, he will be released and subsequently required to report for reasons of his illegal departure.
142. At the point that his matter is considered I find that he will be charged and convicted of illegally departing Iran, but due to his extended period abroad and the file notes that refer to his sympathies of the Kurdish separatist cause, he will be sentenced to a term of imprisonment.
143. Country information that is consistent across sources states that in prison there is systematic extrajudicial torture and ill-treatment:
Torture and other ill-treatment, including through prolonged solitary confinement and deliberate denial of medical care, remained widespread and systematic. Forced “confessions” obtained under torture and other ill-treatment were broadcast on state television.
Prison and prosecution authorities, working under the judiciary, held prisoners in cruel and inhuman conditions characterized by overcrowding, poor sanitation, inadequate food and water, insufficient beds, poor ventilation and insect infestation.
Dozens of people died in custody in suspicious circumstances involving credible reports of physical torture and/or denial of medical care. No investigations were conducted in line with international standards.
The Penal Code retained punishments violating the prohibition of torture and other ill-treatment, including flogging, blinding, amputation, crucifixion and stoning.[25]
[25] Iran, Amnesty International, 2022 (latest available) Any of this harm will carry an amplified impact for the applicant due to his frail mental state. I find that the applicant faces a real chance of serious harm arising from a series of events for which ultimately his ethnicity as a Faili Kurd and his imputed political opinion having being identified as a sympathiser of Kurdish separatists are the essential and significant reason for the harm (s 5J(4)(a)).
145. In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that there is considerable country information that indicates the Iranian authorities are particularly sensitive to the threat of Kurdish calls for autonomy and as such are actively repressing Kurds, imprisoning them and harshly treating all prisoners.
146. For the same reasons the applicant cannot seek protection from the state as the state is the persecutor (5J(2)).
147. I also find that the applicant cannot modify his behaviour as his past actions are what will cause him harm (s 5J(3)).
148. I find that the applicant cannot relocate as the entire state of Iran is controlled by the authorities (s 5J(1)(c)).
149. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
150. I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iran such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
151. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Denis Dragovic
Deputy President

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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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Citations

1823098 (Refugee) [2024] AATA 3533

Cases Citing This Decision

Cases Cited

Statutory Material Cited

AGA16 v MIBP [2018] FCA 628

[2024] AATA 3533

23 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction