1826067 (Refugee)

[2023] AATA 4367

1826067 (Refugee) [2023] AATA 4367 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1826067 and 2101849

COUNTRY OF REFERENCE:                   Iran

MEMBER:Genevieve Hamilton

REPRESENTATIVE:   Samuel Stafford

DATE:2 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits matter 1826067 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

The Tribunal sets aside the decision in matter 2101849 and substitutes it with a decision that the protection visa application is not valid.

Statement made on 02 October 2023 at 11:22am

CATCHWORDS
REFUGEE – protection visa – Iran – political opinion – involvement in the Green Movement – family member of imprisoned journalist – departed Iran without difficulty – connection with the anti-regime community in Australia – religion – Christianity – decision under review remitted

REFUGEE – protection visa – Iran – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – section 91K bar not applicable – validity of second visa application – section 48A bar not lifted – invalid visa application – decision under review substituted

LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 46, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63

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

BACKGROUND

1. These are applications for review of decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012.

3. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 6 December 2012 without applying for it.  At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival (UMA).  However, In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)).

4. The applicant was invited to apply for a temporary protection visa on 27 May 2015.  He did so on 3 July 2015. The delegate refused to grant the visa on 25 July 2016.  The decision was referred to IAA and affirmed by it on 25 October 2016.  The applicant applied for judicial review and pursuant to judgement [in] August 2018 the Federal Court found that the applicant was not a UMA.  He had therefore not been properly notified of his appeal rights to the AAT.  The Department was ordered to renotify the applicant of the refusal and did so.  The applicant applied for merits review on 6 September 2018 (case number 1826067).

5. As determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid application.  Moreover, pursuant to DBB16 v MIBP the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

6. Section 46(1)(d) of the Act relevantly provides that a visa application is valid only if it is not prevented by s 48A of the Act. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused (whether or not the application has been finally determined). The Minister has a personal discretionary power to lift the bar in s 48A if the Minister thinks it is in the public interest to do so: s 48B. 

7. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia.  The 91K bar was purportedly lifted for the applicant on 10 Sep 2020 and a further SHEV application lodged 29 Sep 2020.   The visa was refused on 5 February 2021 and the applicant applied for merits review on 17 Feb 2021 (case number 2101849). 

8. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act.

9. The applicant’s first visa application was not invalid under s 91K (see CBW20).  This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination. 

10. The second visa application is, and always was, barred under s 48A.  Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.

    CRITERIA FOR A PROTECTION VISA

11. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

12. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

13. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

    Refugee

14. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

15. 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.

16. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

17. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

18. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

19. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

20. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

21. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

22. 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

23. In his arrival interview on 15 October 2012 the applicant said he was born in [year] in Tehran.  He provided an address in Tehran where he had lived since 2004.  He stated what ID docs he had in Iran.  He went to school from [year] to 2010.  Then he worked with his brother in a [specified] shop.  His parents are in Iran.  His oldest brother was then in Indonesia waiting for a boat, his middle brother was then in Iran.  He had no other siblings.  He claimed to have been hiding at the villa of a family friend following demonstrations for Mousavi after the elections.  He was injured by security during the elections.  He was told his photo was being circulated and people were looking for him.  He was not sure if his passport was genuine, it was in his own name.  It was taken from him in Indonesia.  

24. In a statement in support of his first protection visa application the applicant said he feared serious harm because of his political beliefs, from the authorities, police and the Ettela’at.  He was a member of Moussavi’s party since the lead up the lead up to the 2009 election and was involved in demonstrations including distributing promotional flyers.  He joined he protests after the election which he believed was rigged against Moussavi.  The applicant explained his political beliefs.  He said his second cousin [Ms A] is a former [Media 1] journalist close to Moussavi.  The applicant worked with her closely during the election.  She is currently in prison and has been badly beaten.  On Ashura Day after the election he was among protesters attacked by under cover Ettela’at members, resulting in a gash on his back and broken nose. His brothers, his father and others carried him away.  He never got stitched.  Other protesters were shot and hanged in prison.  He and his father and brothers went to live in a villa in the North of Iran.  He heard from locals in Tehran that the police had been looking for him. 

25. In a further statement in support of his second protection visa application the applicant said he had converted to Christianity and feared serious harm because of his religion.  In a further statement the applicant said his father had been detained and interrogated by the Ettela’at.  The applicant believed that was due to his cousin.  His father was not able to say much about what happened.  The applicant took down his Facebook posts on his mother’s request. 

26. The applicant made a written statement to the Tribunal dated 18 September 2023.  He said he continued to fear harm given his close connection to [Ms A] which remains in prison and is treated very badly, and they had worked together in the Green Movement.  He discussed his conversion to Christianity.  He said he did not attend Church often and did not openly practice his religion or encourage conversion, but still feared harm in connection with this.  The applicant submitted photos of [Ms A] with his father, and a video in which she states the relationship with his father and brothers. 

27. In a supporting submission the applicant’s representative contended that the applicant was at risk of serious harm due to his political opinion, religion and articulated particular social groups.  It was argued that his claims needed to be considered cumulatively.  Relevant country information about the mistreatment of [Ms A] in prison was cited, consistent with other country information about prison conditions.  The representative cited information (including from the DFAT report) that the monitoring and harassment of activists, journalists and their families does occur in Iran, which supported the applicant’s claim that his father had been detained and questioned. 

28. The applicant attended a hearing of the Tribunal on 21 September 2023.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

29. At the hearing the applicant said [Ms A] was the daughter of his father’s aunt.  His aunt’s name was [Ms B].  She had been arrested again and was now in prison with a lengthy  year sentence because of the Open Letter she had written to the government.  She had been beaten so badly in prison she had a heart attack.  He himself had been supporting Moussavi in 2009, while [Ms A] supported Karroubi who was also competing to be President.  Later they all joined the Green Movement to oppose Ahmenijad who was backed by the Basij and the Revolutionary Guards. 

30. The applicant was distributing pamphlets and then protesting after the election.  He described the locations of most of the demonstrations.  They were frequent in the lead up to Ashura but then the Basij cracked down.  He was attacked on Ashura Day as described.  It was too risky to go to the hospital, his brother and father took him home.  Khameini had said 3 or more people walking would be shot at by the police.  The whole family moved to a villa in the North to wait for things to calm down.  [Ms A], and Rafsanjani’s daughter were among those arrested.  Agents took photos during the demonstrations and someone went to his locality with his photo.  No one identified him but his friends warned him not to go back.  It was a very violent period and there were lots of killings in Tehran.  His father worked to get the applicant and his brothers out of Iran.  The applicant said he did not know if his passport was genuine or not.  The applicant came first, his brothers afterwards.  One of his brothers didn’t really have any problems with the authorities and went back, he is alright so far. 

31. Families with records were approached during the recent demonstrations.  His father was detained and interrogated.  The applicant said what had happened in Iran recently was terrible.  People were being killed and raped indiscriminately.  The applicant is in close contact with the Iranian community in Australia about the situation in Iran but does not participate in demonstrations because it is well-known that they are being filmed, and who in the community is supporting the Iranian government, and he does not want to get his family into trouble.  He had scrubbed his social media accounts too.  He told his brother in Melbourne to do the same.  The applicant said that if he went back to Iran he would absolutely have to be involved in the protests because innocent people are being killed. 

32. The applicant said his family was moderately religious but he had never been particularly devotional.  His family know he is now following Christianity and respect his decision. 

    Country information

33. DFAT’s Country Information Report dated 14 April 2020 contains the following information about Christian converts:

    According to media reports, nine Christian converts received five-year prison sentences in December 2019. At least three of those sentenced had reportedly been arrested in a house church in Rasht (Gilan Province). In June 2018, four Christian converts were sentenced to 10 years’ prison each, and another 114 were reportedly arrested on charges of proselytising in December 2018. In March 2018, 20 Christian converts allegedly participating in a workshop were arrested near Karaj (most of whom were subsequently released). Christian advocacy groups claim that authorities pressure some church leaders to emigrate, either through direct threats or through intentional harassment (including daily summons to security offices for questioning, confiscation of identity documents or forcing them out of their jobs).

    …

    Despite occasional arrests and prosecutions, the authorities do not actively search for Christian converts and, as far as DFAT is aware, do not employ people exclusively for this purpose. DFAT assesses that a Christian convert would not face harm if they maintain a low profile, do not openly proselytise and are not of interest to the authorities for other reasons (e.g. political activism). Official sources told DFAT that converts who keep their beliefs private are not of interest to the authorities. Those who openly propagate Christianity and seek to convert others, in contrast, would draw the attention of the authorities, and face a high risk of official discrimination, including harassment, arrest and prosecution, and some societal discrimination. Local sources were not aware of Christian converts being executed for apostasy in recent times. DFAT assesses the risk of execution for conversion/apostasy to be low (see Religiously-Based Charges).

    International observers report that Iranians who convert to Christianity abroad are unlikely to face adverse official attention upon their return, provided they have not previously come to the attention of the authorities for political activities, maintain a low profile and do not engage in proselytization activities. This includes individuals who publicise their conversion online while abroad. According to local sources, in 2017 an Iranian mother and her child who were baptised in Turkey were briefly detained on their return to Iran (they were carrying baptism certificates), but then released. DFAT understands such arrests are not common (see Conditions for Returnees).

    DFAT assesses that Muslim converts to Christianity risk arrest and detention if their conversion is revealed. Christians found to be proselytising face a high risk of arrest, prosecution and imprisonment. DFAT assesses that Christian converts face a high risk of societal discrimination in the event their conversion becomes widely known, particularly if they are from more religiously-minded Muslim family backgrounds.  This may involve ostracism from one’s family and discrimination in employment.

    Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. Separately, a person of any religion may be charged with the crime of ‘swearing at the Prophet’ (blasphemy) if they make utterances that are deemed derogatory toward the Prophet Mohammed, other Shi’a holy figures or divine prophets. The Penal Code does not specifically criminalise apostasy, but provisions in the Penal Code and the constitution stipulate that sharia applies to situations in which the law is silent, and judges are compelled to deliver sharia-based judgements in such cases. Although the Quran does not explicitly say that apostasy should be penalised, most Islamic judges in Iran agree that apostasy should be a capital crime. This ruling is based both on oral traditions attributed to the Prophet Mohammed and to Shi’a Imams, whom Shi’a consider the Prophet’s rightful successors. Chapter 5 of the Penal Code specifically criminalises swearing at the Prophet as a capital offence, although a clause states that the sentence can be reduced to 74 lashings of the whip if the accused states the insults were the result of a mistake or were made in anger.

    Politically-motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. However, in the vast majority of cases, defendants charged with apostasy also faced other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.

    While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. This includes Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis) and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases seem to be primarily of a religious nature, particularly when connected to proselytization.

    Today, death sentences in apostasy and blasphemy cases are rare. In March 2017, the Supreme Court upheld the decision of a criminal court in Arak (Markazi Province) to sentence a 21 year-old man to death for apostasy. Authorities arrested the man after he made social media posts considered critical of Islam and the Quran while on military service. According to publicly available information, the death sentence had not been implemented at the time of publication. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.

    DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.

1. Iran has experienced a number of large anti-government protest movements over the past decade that have attracted a violent response from security forces. Authorities often use excessive force against protesters, sometimes causing death.  DFAT reports as follows:

   While public gatherings and marches are permitted by law, and protests do occur, significant restrictions on peaceful protest exist in practice. According to local sources, rules governing public gatherings and marches are applied inconsistently, with groups considered pro-regime routinely issued permits, while those seen as critical experience difficulty in obtaining a permit. For example, during the November 2019 unrest, gatherings of people protesting against the petrol price increase were vilified and put down with force, whereas pro-regime rallies occurred freely and received positive press coverage. The authorities regularly monitor public gatherings, including public entertainment and lectures, student and women’s meetings and protests, labour protests and Friday prayer gatherings.

   Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, although this freedom is not unlimited — a number of well-established ‘red line’ topics are off-limits and critical commentary may lead to prosecution under national security legislation (see Media). Social media accounts of well-known figures and celebrities attract particular scrutiny (see Artists and Musicians). Authorities are more likely to crack down on dissent during times of political uncertainty, such as during ongoing political demonstrations, and may restrict the ability of individuals to comment or communicate online at such times (see Critics of the State).

   Local sources told DFAT that it is common for Iranians to be critical of the government in public places, including supermarkets, shopping malls and taxis. However, people remain cautious about crossing well-understood ‘red lines’, like insulting the Supreme Leader, in their public interactions beyond close family and friends.

   DFAT assesses that the authorities do not comprehensively monitor Iranians’ online activities.  Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.

2. The suppression of dissent in Iran has been highlighted and amplified by the anti-hijab protest movement that began at the end of 2022.  COISS advises based on a review of a range of sources: This protest movement was sparked by the death in custody of a Kurdish woman (Mahsa Amini) who was arrested in Tehran for improperly wearing her headscarf.  The movement quickly morphed into wider criticisms of the Iranian regime, with women’s rights at the forefront, and occurred in all of Iran’s 31 provinces.  The protests were the most intense in September to December 2022, although low-level protest activity occurred sporadically in early 2023 and was still ongoing as of the date of this report.  Women were key participants in the protests, as were students and young people; however, reports note that people of all generations classes and ethnicities were involved.  Authorities responded to the protests with lethal force, with non-government organisations estimating that between 488 and 529 people were killed during or as a result of the demonstrations, including 64 children.  More than 600 protesters were reported to have lost sight in one or both eyes as a result of being shot by security forces, leading some human rights organisations to claim that blindings were a systematic and deliberate tactic.  There are reports that women were assaulted or killed by security forces during protests for removing their headscarves during protests.  Security forces reportedly used tear gas, live ammunition, water cannons and beatings against protestors. Authorities arrested an estimated 20,000 people and executed four men in connection with the protests. Those arrested included not only protesters but also journalists, lawyers, activists, artists, and athletes who voiced support for the movement.  More than 100 protesters have either been sentenced to death or face death penalty charges…

3. On the subject of monitoring of the diaspora, IRN201321.E is a Canadian Immigration and Refugee Board research response dated 2 March 2023 which includes information about the systemic monitoring of Iranians abroad, including tracking their social media, to stifle dissidents, resulting in serious threats and harassment, and even reported executions. 

4. On forms of mistreatment in the justice system DFAT reported:

   … international human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. International sources report that common methods of torture used in Iranian prisons include threats of execution or rape, sexual humiliation, sleep deprivation, electroshock, burnings, the use of pressure positions, and severe and repeated beatings. Allegations of forced confessions through torture, denial or delayed access to legal representation, and mistreatment while in detention are common in the case of individuals charged with national security offences. Individuals arrested for minor offences, dress code violations and consuming alcohol face a low risk of torture.

   …

   Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons.  However, the Penal Code provides for the use of physical punishment, including flogging, blinding and amputations (usually the hand or fingers), for a range of offences. More than 100 offences attract the punishment of flogging, including theft, assault, alcohol consumption, extra-marital sex and attending mixed- gender parties. The judiciary has consistently rejected the notion that floggings, blindings and amputations amount to torture, maintaining they are permitted under sharia and are effective deterrents to criminal activity.

   …

   Prison conditions are widely considered to be poor. Human rights observers report that, because of overcrowding, some prisoners sleep on floors, in hallways or prison yards (according to some reports, the prison population is nearly 28 per cent higher than its official capacity). Amnesty International claims prisoners receive insufficient food. Medical facilities are basic, and prisoners are often reportedly denied medical treatment for pre-existing conditions, injuries suffered at the hands of prison authorities or fellow prisoners, and for illnesses caused by poor sanitary conditions. There are reports of medical care being withheld for political prisoners as a form of punishment and as a means of extracting confessions…

5. The COISS notes that commentary about the treatment of failed asylum seekers upon arrival is contradictory, ranging from conclusions that there is essentially no danger to warnings of interrogation and prosecution.  DFAT states that

   Authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.

   International observers report that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (heavy Internet filtering means most Iranians will never see them), protesting outside an Iranian diplomatic mission, converting to Christianity or engaging in LGBTI activities. In such cases, the risk profile for the individual will be the same as for any other person in Iran within that category. Those with an existing high profile may face a higher risk of coming to official attention on return to Iran, particularly political activists. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. According to local sources, the greatest challenge facing failed asylum seekers on return is reintegrating economically and finding meaningful employment.

   DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination.

   FINDINGS AND REASONS

6. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Iran and that he has no right to enter or reside in any other country.

7. The Tribunal found the applicant to be a generally credible witness.  The Tribunal accepts that the applicant was involved in the Green Movement as claimed, and that he was injured as claimed.  His claims have been consistent in that regard.  It accepts that he is related to [Ms A] and collaborated with her as a member of the Green Movement, based on the submitted evidence. 

8. The applicant was able to leave Iran without difficulty which would suggest he was not of significant interest to the authorities at that time.  It is not readily believable that he was in hiding for a full three years before leaving in Iran.  However this is not determinative of his risk profile. 

9. The Tribunal accepts that the applicant’s father was detained and interrogated at some point due to the connection with [Ms A].  This is consistent with the country information cited by the representative concerning family members of activists.  The Tribunal accepts that the applicant had posted about [Ms A] on social media, this being inherently plausible due to their relationship, and subsequently removed any posts out of caution.  The Tribunal accepts that the applicant maintains a connection with the anti-regime community in Australia but is advisedly cautious about participating in protests.  It accepts, however, that if he were to return to Iran he would be motivated as before to join in anti-regime activities. 

10. The Tribunal has reservations about the applicant’s claimed conversion to Christianity, as his involvement seems to be weak.  However, considering that it found him to be overall credible, the Tribunal accepts that the applicant does have this belief and is therefore an apostate. 

11. Based on a cumulative assessment of his claims, and a balanced reading of the country information, the Tribunal is satisfied that there is a real chance of the applicant coming to the adverse attention of the Iranian authorities and being detained in that event in the reasonably foreseeable future.  The country information indicates that people detained in Iran are at risk of significant physical harassment or ill treatment. 

12. The Tribunal therefore accepts that the applicant faces a real chance of serious harm for reasons of his political opinion and his religion.  The Tribunal finds there are no reasonable steps that he could take to avoid this harm.  Since the harm he fears is from the authorities and is supported by Iran’s laws and institutions, effective protection measures are not available.

13. The Tribunal accepts that the applicant has a well founded fear of persecution in any part of Iran.  Thus the reasonableness of relocating does not arise.

14. The Tribunal finds that the applicant is a refugee within the meaning of the Act. 

    CONCLUSION

15. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

16. The Tribunal remits matter 1826067 for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

17. The Tribunal sets aside the decision in matter 2101849 and substitutes it with a decision that the protection visa application is not valid.

    Genevieve Hamilton
    Member