1827638 (Refugee)
[2023] AATA 2683
•19 June 2023
1827638 (Refugee) [2023] AATA 2683 (19 June 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Patrick O'Connor
CASE NUMBER: 1827638
COUNTRY OF REFERENCE: Stateless
MEMBER:Jason Pennell
DATE OF DECISION: 19 June 2023
DATE CORRIGENDUM
SIGNED:12 July 2023
PLACE OF DECISION: Melbourne
AMENDMENT: The following corrections are made to the decision:
-In the final sentence of paragraph [68], delete the words ‘her race as an ethnic Hazara’, and replace with ‘his race as an ethnic Kurd’.
Jason Pennell
Senior Member
Statement made on 12 July 2023 at 1.54pm
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Patrick O'Connor
CASE NUMBER: 1827638
COUNTRY OF REFERENCE: Stateless
MEMBER:Jason Pennell
DATE:19 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(c)(i) of the Migration Act based on his membership of the same family unit as his children.
Statement made on 19 June 2023 at 10.20am
CATCHWORDS
REFUGEE – protection visa – stateless/Iran – original claims as stateless Faili Kurd and secondary applicant to wife’s application – later declaration to be Kurdish Iranian citizen – discrimination and capacity to subsist – political opinion – participation in Green Movement protests – religion – non-practicing Muslim with tattoo – returned failed asylum seeker – mental health – vague and inconsistent claims and evidence – country information – no harm to family members – no conversion or religious activity – applicant and wife separated – wife and children’s application remitted after separate review – violence, controlling behaviour and threats to take custody if returned – not a member of family unit of wife but member of family unit of children – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H(1), 5J(1)(a), (4), 36(2)(a), (aa), (b)(i), (c)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
C v MIMA (1999) 94 FCR 366
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
MIMA v Y [1998] FCA 515
Saliba v MIMA (1998) 89 FCR 38
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of Iran, applied for the visa on 26 September 2017 as a secondary applicant to his wife’s application. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 20 September 2018.[1] On 2 March 2022 a representative of the applicant’s spouse notified the Tribunal that the applicant and his wife had separated and requested that their reviews conducted independently. Accordingly, the applicant’s matter has been heard and determined by the Tribunal independently of his wife’s claim.
[1] Application for review form, AAT file, Doc ID: 4742807.
4.The applicant appeared before the Tribunal on 31 January 2023 to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
5.The applicant was represented in relation to the review by Mr Patrick O’Connor of the Tasmanian Refugee Legal Service.
CRITERIA FOR A PROTECTION VISA
6.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.
7.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.
8.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).
9.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.
10.If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
11.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.
APPLICANT’S Claims and evidence
12.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision not to grant the applicant a protection visa should be affirmed.
Applicant’s Identity and Country of Reference
13.The applicant claims that he was born on [Date] in [County] Ilam, Iran. The applicant’s claims regarding his nationality have been at issue since his arrival in Australia.[2] The applicant in his Entry Interview on 24 December 2010, Protection Obligation Evaluation interview on 7 March 2011, his first Independent Protection Assessment Interview on 11 August 2011, his second Independent Protection Assessment Interview on 25 September 2012, and in his written application for a temporary protection visa submitted on 26 September 2017, claimed to be a stateless Faili Kurd.[3]
[2] Delegate’s decision record p. 5-7, Dept. File No. [Reference].
[3] Dept. File No. [Reference].
14.However, by his statutory declaration provided to the Tribunal on 31 January 2023, the applicant states that he is not a stateless Faili Kurd, as originally claimed, but rather an Iranian national and a citizen of Iran. [4] The applicant states that he left Iran on a valid Iranian passport. In addition, he claims that he is an ethnic Kurd (not a Faili Kurd) and that he has renounced his religion.[5]
[4] Statutory declaration, AAT File 1827638, Doc ID 10670683.
[5] ibid
15.The Applicant did not provide the Department or the Tribunal with any documentary evidence of his identity, nationality, or citizenship. Nevertheless, based on the applicant’s statutory declaration and oral evidence to the Tribunal, it accepts that he is not a stateless Faili Kurd as originally claimed and that an ethnic Kurd and Iranian national and a citizen of Iran. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. As such, the applicant’s protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.
Migration History
16.The applicant arrived in Australia by boat from [Country] [in] December 2010. He was transferred to Christmas Island Immigration Detention Centre and attended an Entry Interview on 24 December 2010. On 7 March 2011 the applicant attended an interview for a Protection Obligations Evaluation. He received a negative outcome in this evaluation on 21 April 2011 and was automatically referred for an Independent Protection Assessment.[6] This assessor interviewed the applicant on 11 August 2011, and 27 October 2011 decided that the applicant was not owed protection.[7] The applicant appealed this finding, and his claims were reviewed again in a second Independent Protection Assessment, which on 31 October 2012 found that the applicant was owed protection by Australia.
[6] Notification of a primary Protection Obligations Determination outcome, Dept File No. [reference].
[7] EAL022 Negative IPA Signed, Dept File No. [reference].
17.On 23 July 2013 the applicant was granted a Bridging E (subclass 050) visa. He was also granted a Temporary Humanitarian Stay (subclass 449) visa on this date, which ceased on 30 July 2013.[8]
[8] Movement record dated 19 December 2022, AAT file 1827638, Doc ID 10568596.
18.The applicant has held successive bridging visas throughout his time in Australia.[9] On 31 August 2015, the Department of Immigration and Border Protection (as it was then known) invited the applicant to apply for a protection visa. The applicant was included in his wife’s protection visa application, which was lodged on 26 September 2017. This application was refused on 17 September 2018,[10] and applicant applied for review of this decision by the Tribunal on 20 September 2018.[11] He currently holds a Bridging E (subclass 050) visa, which was granted on 19 July 2017.[12]
[9] ibid
[10] Delegate’s decision record, Dept File No. [reference].
[11] Application for review form, AAT file 1827638, Doc ID 4742807.
[12] Movement record dated 19 December 2022, AAT file 1827638, Doc ID 10568596.
Applicant’s Claims for Protection
19.The applicant lodged a request for Protection Obligations Determination on 4 March 2011. The applicant was initially included as part of his wife’s protection visa application as a secondary applicant. By a statutory declaration dated 26 September 2017[13] the applicant confirmed that he continued to rely on the claims made previously in his Independent Protection Assessment and Protection Obligation Determination. Accordingly, the delegate did not summarise his claims to protection in the record of his refusal decision.
[13] Applicant’s statutory declaration dated 26 September 2017, Dept File [reference].
20.In a statutory declaration dated 5 March 2011, the applicant made the following claims in support of his Protection Obligations Determination:[14]
[14] Statutory declaration of applicant dated 5 March 2011, Dept File No. [reference].
‘(1) Introduction:
I am a stateless Faili Kurd from Iran. I have lived in Iran all my life and I do not have the right to live anywhere else.
(2) The reasons I left (insert country of residence):
I have never had any residency rights or identity documents in Iran. My parents were not able to register my birth, so I do not even have a birth certificate. Because of this I have always faced discrimination.
I do not have a legal right to work, so I have to make a living the best way I can. It is very difficult, and I cannot earn very much money. I used to work selling [Product 1s] in the streets in my local area. I did not have permission to do this, so if I was caught, I had to pay a fine. I managed to avoid this by being vigilant, but sometimes I was stopped by the Basij or people from the local council. They would take all my stock and I would have to pay them. This represented a big loss to me.
As a stateless Faili Kurd I also face problems in a number of areas. We cannot go on to do higher studies, we do not receive any social or welfare assistance from the government, we do not receive subsidized health care. Medical care can be expensive and if you cannot pay you do not receive proper care. Fortunately, I have not had any serious health problems in the past, but I am fearful of what my happen if I do.
Stateless Faili Kurds are looked down on in Iran. I have heard of people being accused of spying for Iraq, because many Faili Kurds come from Iraq, and some still have family members there. Faili Kurds are also harassed by the Basij. I have never had any serious problems with them Basij, but I have heard of other people who have been serious ill-treated or harmed by them. Because I work at the markets, I am always at risk of encountering a Basij who may detain or ill-treat me because I am a stateless Faili Kurd.
We are denied the right to participate in many social, cultural and sporting events in Iran. For example, I played [Sport] for a local club. I was able to play in the local competition. Because I was a good player, and I paid the fees. However, I because I could not provide any documents I could not play in the national competition. I had hoped to become a professional [Sport player], but this was impossible because I am a stateless Faili Kurd.
(3) What I fear may happen to me if I return:
If I returned to Iran, I would continue to fact the discrimination I have experienced in the past and I would be at risk of being detained or harm by the Basij or others because I am a Faili Kurd.
In addition, I believe that I will be detained at the airport and accused of spying or being involved in anti-government activities because I am a Faili Kurd who left the country illegally and sought asylum in Australia.
(4) Who might harm me if I return:
I fear the Iranian authorities and groups such as the Basij and the Ettelat.
(5) Why I think that might happen to me if I return:
Because I am a stateless Faili Kurd and because I left Iran illegally and sought asylum in Australia.
(6) Do I think the authorities can protect me if I return?
I fear the authorities. They will not protect me. I will face the same problems wherever I go in Iran.’
21.On 21 April 2011 the assessor who conducted the Protection Obligations Determination summarised the applicant’s claims as follows:[15]
[15] Notification of a primary Protection Obligations Determination outcome, Dept File No. [Reference].
· The claimant is a Faili Kurd born in Elam, Iran and is stateless. He has never had any residency rights in Iran.
· He has always faced discrimination because his parents were not able to register his birth and obtain a birth certificate or other identity documents.
· He has no legal right to work which makes it difficult to earn money. He used to work selling [Product 1s] in the streets in the local area. If he was caught, he would have to pay a fine.
· He managed to avoid this by being vigilant but sometimes he would be stopped by the Basij or local council people who would take all his stock and he would have to pay them.
· He also faces problems in other areas, for example, he cannot go onto higher studies, or receive social, welfare or subsidized health care assistance from the government. Medical care is expensive, and a person will not receive proper care if they cannot afford it.
· Stateless Faili Kurds are looked down on in Iran. He has heard of people being accused of spying for Iraq because many Faili Kurds come from Iraq, and some still have family members there. Faili Kurds are also harassed by the Basij. He has never had any serious problems with them but has heard of other people who have been seriously ill-treated or harmed by them. Because he works at the markets, he is always at risk of encountering the Basij who may detain or harm him because he is a stateless Faili Kurd.
· Faili Kurds are denied the right to participate in many social, cultural, and sporting events in Iran. For example, he played in local competition for a local club football player. He was a good player and paid fees but could not play in the national competition or become a professional footballer because he could not provide documents as he is a stateless Faili Kurd.
· If he returns to Iran, he will continue to face discrimination and risks being detained or harmed by the Basij or others because he is a Faili Kurd.
· The claimant fears he will be accused of spying or being involved in anti-government activities and being detained because he is a Faili Kurd who left the country illegally and sought asylum in Australia.
The Applicants’ evidence
22.The applicant’s evidence to the Tribunal was that he was born on [Date] in [County] Ilam, Iran. He is an Iranian national and citizen. The applicant confirmed to the Tribunal that he is not an ethnic Fali Kurd as claimed in his protection visa application, but rather claimed to be an ethnic Kurd. In addition, the applicant stated that he is a Shia Muslim but no longer practices his religion. Based on the applicant’s evidence to the tribunal it has accepted he is an ethnic Kurd and citizen of Iran.
23.The applicant’s evidence was that his parents are alive and continue to live in Tehran, Iran. The applicant’s father is now retired but owned and operated a [business] in Tehran. The applicant’s mother was engaged in home duties. The applicant has two sisters and two brothers. One of his brothers is living in Ilam, Iran.[16] His remaining brother and sister continue to live in Tehran, Iran.
[16] Ilam is a Kurdish city and capital of Ilam Province, Iran and is located close to the Iran-Iraq border. Ilam Province is in the western part of the country and shares a border with Iraq. (see
24.The applicant’s evidence was that he attended school in Tehran. He attended [Primary School] [Suburb] in Tehran. The applicant was not able to tell the Tribunal which secondary school he attended. However, his protection visa application[17] and his IAAS Interview record dated 5 March 2011[18] states that he attended [Secondary School], [Suburb] in Tehran. The applicant could not tell the Tribunal when finished school but stated that he was about 16 years of age. The applicant did not attend College or University. After leaving school he commenced work in his father’s [business].
[17] Dept File No [Reference], Doc ID:[number] f.37
[18] Dept File No [reference] Doc ID: [number]
25.The applicant’s evidence was that he was married at 22 or 23 years of age in Tehran. He was not able to tell the Tribunal the date or year he was married. His evidence was that he is now separated and currently in the process of obtaining a divorce from his wife. As a result of his marriage the applicant has two sons, both of whom were born in Australia.
26.The applicant’s evidence was that he travelled to Australia with his family in 2009 because he and his family came to the attention of the Basij in Iran because of their involvement in the Green Movement. The applicant’s evidence was that the Green Movement in Iran commenced in 2009. He stated that whoever was wearing green ran the risk of being detained and imprisoned by the authorities. His evidence was that on one occasion he was wearing a green shirt while he was in a taxi when he was stopped by a member of the Islamic Revolutionary Guard Corps (known as Sepah) and asked if he was attended a protest. The applicant’s evidence was that he immediately left the taxi and fled as he feared for his safety. The applicant was not harmed or detained as a result of him being stopped by a Sepah member.
27.The applicant’s evidence was that his brother was arrested during the Green Movement protests. He claims that his brother was at Revolution Square taking videos of people watching the Green Movement protests when he was detained and taken to prison. The applicant initially did not know where his brother was but later discovered he had been taken to Evin Prison[19] in Tehran. His evidence was that his brother was released from prison after approximately two to three months. The applicant’s evidence was that his father bribed certain people to secure his release. He stated that he was not involved in his brother release as he continued to work in his father’s business. The applicant’s evidence was that his brother was scared when he was released from prison, but he was not subjected to any further action by the authorities, and he continue to live in Iran.
[19] Evin prison a prison located in the Evin neighbourhood of Tehran, Iran. It has been the primary site for the housing of Iran's political prisoners since 1972. A purpose-built wing in the prison is known as "Evin University" due to the number of students and intellectuals housed there (NPR, ‘Iran’s Evin Prison likened to Torture Chamber’ 19 July 2007. applicant’s evidence was that he attended the Green Movement protests but was not arrested. Nevertheless, he claimed that it was not necessary to have attended the protests for the authorities to take an interest in a person. He claimed that it was enough to merely wear green coloured clothes. In addition, the applicant claimed that he attended other demonstrations in Iran. However, the applicant was not able tell the Tribunal what demonstrations he had attended or when.
29.The applicant’s evidence was that he and his family had thousands of encounters with the authorities, including the Basij, in Iran. His evidence was that he attended a demonstration where he was kicked by members of the Basij. However, he ran away, and he did not experience any further harm. The applicant’s evidence was that members of the Basij would go to the market to check on people. He claimed that he was approached by the Basij on many occasions but did not inform the tribunal where and when he was approached and the reasons why he was approached. The applicant explained that would usually go to the park and sit with friends. He claimed in or about 2009 Lebanese guards had been engaged by the authorities. He claimed that while he was in the park with friends the guards surrounded them and tried to arrest them. The applicant’s evidence was they were not arrested, and they were not harmed.
30.The applicant claims that as the situation in Iran deteriorated, he decided to travel to Australia with his family (his wife and in-laws). The applicant’s evidence to the Tribunal was that he left Iran legally on his own passport and travelled to [Country]. He then travelled by boat to Australia. The applicant explained that on the boat they were instructed to burn their passports for the purpose of arriving in Australia.
31.The applicant claims that the situation in Iran has more recently become worse. His evidence was that the killing of Mahsa Amini in 2022 has resulted in a crackdown on minorities groups and dissidents leading to a significant increase in bloodshed.[20] The applicant claims that mass demonstrations and civil unrest in Iran have been meet with a strong response by the authorities. The use of arbitrary arrests, stringent monitoring and use of legal force have been used against protestors.
[20] Statutory declaration of applicant dated 31 January 2023 at [12]-[18], AAT file No 1827638 Doc Id: 10691853
32.The applicant claims that he has read international reports and spoken to family members in Iran about what is happening at present and claims that he has serious concerns about his welfare if he is returned to Iran against his will.[21] Nevertheless, the applicant did not detail to the Tribunal which reports he had read. The applicant’s evidence was that he has a profile which will attract the attention of the Basij and the authorities if he is returned to Iran. He claims because he made many posts on [Social media] he will be targeted by the authorities if he is returned. Nevertheless, he did not provide to the Tribunal with any copies or any independent evidence of him having made social media posts, including [Social media] posts, as claimed. In addition, he claims that he was a follower of several Israeli singers on social medic. The applicant claims that if he is returned to Iran the authorities will discover he is follower of Israeli singers and as a result he will be detained and harmed. The applicant did not provide the Tribunal with any evidence of him following Israeli singers as claimed.
[21] ibid
33.In addition, the applicant claims that because he has been in a western country for a period of approximately 12 years he will be detained and harmed when he arrives in the country.[22] His evidence was that the government have increased the security for overseas arrivals due to the turmoil.[23] The applicant claims f he is forced to returned to Iran he will be identified and seriously harmed by the authorities upon his arrival.[24]
[22] ibid
[23] ibid
[24] ibid
34.The applicant claims that he is a Shia Muslim but states that he is opposed to many Islamic principles and that he no longer practices Islam.[25] The applicant has not converted to Christianity or any other religion. The applicant states that he believes that people should be allowed to choose their own religion. The applicant claims to have chosen not to practice religion. The applicant claims that because of a [tattoo] of [Image 1] on his [Body part], he will be detained and harmed if he is returned to Iran.
[25] Statutory declaration of applicant dated 31 January 2023 at [19]-[23], AAT file No 1827638 Doc Id: 10691853
35.The applicant has a [tattoo] of [Image 1]a on his [Body part]. The applicant’s evidence was that he got the tattoo because he loves Christ. The applicant claims that if he is returned to Iran the authorities will stop, detain, and investigate him at the airport. As a person with a [tattoo] of [Image 1] on his [Body part], as a person who has lived in a western country for 12 years, having escaped Iran as an asylum seeker who has renounced Islam and as a Kurd, he will be detained and harmed by the authorities if he is returned to Iran.
Applicants supporting documentation.
36.The applicant provided the following documents to the Department and Tribunal in support of his protection assessments and visa application:
·Form 80 Personal Particulars[26]
[26] Form 80, Dept File [reference].
·Protection Obligations Evaluation Request[27]
[27] POE Request, Dept File [reference].
·UNHCR - Consent to Release[28]
[28] UNHCR Consent to release, Dept File [reference].
·Form 815 Health Undertaking[29]
[29] Form 815 Health Undertaking, Dept File No. [reference].
·Australian Federal Police Check dated 20 August 2014[30]
[30] Australian Federal Police Check dated 20 August 2014 Dept File No. [reference].
·Birth certificate of applicant’s son, certified on [date].[31]
[31] Birth certificate, Dept File No. [reference].
·Legal submissions from his then-representative, dated 12 April 2018.[32]
[32] Legal submissions dated 12 April 2018, Dept File No. [reference].
·Response to s 57 Invitation to Comment on Adverse Information and s 56 Request for More Information, including Legal submissions dated 6 September 2018[33]and Screenshots of the applicant’s wife’s [Social media] activity.[34]
·Request to split the applicant’s proceedings from his wife’s following the breakdown of their relationship.[35]
·Legal submissions dated 23 November 2022.[36]
·A Country Information Report on Iran.[37]
·Monthly data reports from the Department of Home Affairs recording protection visa grants by country.[38]
·Further legal submissions, dated 16 January 2023.[39]
·Two news articles from The Sydney Morning Herald newspaper.[40]
·Statutory declaration signed by the applicant on 31 January 2023.[41]
·Post-hearing legal submissions dated 8 February 2023.[42]
·Translated copy of an Iranian background check dated [October] 2018 in respect of the applicant’s brother, which sets out the charge of ‘Action against the national security of the country’ for which he was apprehended [in] June 2009.[43]
[33] Legal submissions dated 6 September 2018, Dept File No. [reference].
[34] [Social media] screenshots, Dept File No. [reference].
[35] Request from representative to split proceedings, AAT file 1827638 Doc ID No: 9498406.
[36] Legal submissions, AAT file 1827638 Doc ID No: 10470297.
[37] Country information report, AAT file 1827638 Doc ID No: 10470297.
[38] DHA monthly data reports, AAT file 1827638 Doc ID No: 10470297; AAT file 1827638 Doc ID 10873260.
[39] Legal submissions, AAT file 1827638 Doc ID No: 10661587.
[40] Paul Sakkal, ‘Campaign to save Iranian man with family in Australia from execution’, The Sydney morning Herald (16 January 2023); Paul Sakkal, ‘Silencing dissent by threatening family’: Iran cracks down on family of Australian protester’ The Sydney Morning Herald (16 January 2023), Tribunal file 1827638, Doc ID No: 10661587
[41] Statutory declaration, AAT file 1827638 Doc ID No: 10691853.
[42] Post-hearing submissions dated 8 February, Tribunal file 1827638 Doc ID No: 10727818.
[43] Translated copy of the applicant’s brother’s background check dated 3 October 2018, AAT file 1827638 Doc ID No: 10890181.
COUNTY INFORMATION
37.In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the latest DFAT report on Iran dated 14 April 2020 (the DFAT Report)[44] marked as ‘Annexure A’ to this decision.
[44] DFAT Country Information Report Iran 14 April 2020
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
38.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
39.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[45] Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[46]
[45] Section 5AAA of the Act
[46] MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 @ [169–70]
40.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[47] Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.
[47] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p.482
41.If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[48] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
Delay
[48] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 @ [196]
42.Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[49] Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[50]
[49] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[50] Subramanium v MIMA (1998) VG310 of 1997.
43.In this case the Tribunal has significant concerns about the credibility of the applicant’s evidence. On 4 March 2011 the applicant lodged a request for Protection Obligations Determination on 4 March 2011 and provided a statutory declaration dated 5 March 2011 (‘the POD Declaration’) in support of the request. In the POD Declaration the applicant claimed that he was a stateless Faili Kurd a result of which he had suffered discrimination in Iran, including being denied access to education and work and the right to participate in social, cultural, and sporting activities. He claimed that as a Faili Kurd there was a real chance he would be seriously harmed by the Basiji. However, the applicant’s evidence to the Tribunal, in both his oral evidence and his statutory declaration dated 31 January 2023,[51] was that he is a citizen of Iran and not a Faili Kurd as previously claimed. The applicant’s evidence was that he is Kurdish and an Iranian national and citizen. He confirmed to the Tribunal that he departed Iran with his family legally and on his own valid passport.
[51] Statutory declaration of applicant dated 31 January 2023 at [12]-[18], AAT file No 1827638 Doc Id: 10691853
44.The applicant claims[52] that there was a mistake on the file about his ethnicity and status as an Iranian citizen because he was originally a dependant on his wife’s application for a protection visa. He claims that he was not interviewed as part of the process and as such did not have a chance to fully explain his circumstances until now. However, the applicant’s statutory declaration dated 26 September 2017[53] confirms that at that time he relied on the claims previously made in his Independent Protection Assessment and Protection Obligation Determination. That is, he fled Iran in 2010 because of his status as a stateless Faili Kurd. As such, the Tribunal does not accept the applicant’s evidence that his claim of being a stateless Faili Kurd was a mistake and that he had not previously had the opportunity to correct his application for protection.
[52] Statutory declaration of applicant dated 31 January 2023 at [24]-[27], AAT file No 1827638 Doc Id: 10691853
[53] Applicant’s statutory declaration dated 26 September 2017, Dept File [reference].
45.The Tribunal accepts the applicant’s evidence that while on the boat travelling to Australia, he was instructed by the people smugglers to destroy his passport and claim he was stateless for the purposes of arriving in Australia. However, the Tribunal notes that he continued to mislead the Australian authorities about his status as an Iranian citizen well after his arrival and only admitted that he was in fact an ethic Kurd and an Iranian citizen in his submissions to the Tribunal dated 20 November 2022, by which he made the claims he now relies upon– a period of approximately 12 years. As a result given the applicant’s delay, the Tribunal has concerns about the credibility of the applicant’s evidence in relation to each claim.
Applicant as a vulnerable person
46.Finally, the applicant claims that his ability to give cogent evidence to the Tribunal has been affected by his history of mental illness.[54] In this case the Tribunal has been mindful that the applicant may have found it difficult to give evidence in this case due to several factors including his level of education, cultural background, and mental health condition. The Tribunal accepts that during a hearing the applicant may have been nervous about giving his evidence.
[54] Applicant’s submission dated 20 November 2022 AAT file No 1827638, Doc ID 10470297.
47.However, during the hearing the applicant appeared willing and able to give evidence and make submissions in support of his claim. In addition, despite claim that he has a history of mental illness, the applicant did not provide the Tribunal with any medical report or other independent evidence of his mental health condition.
48.The Tribunal notes that the applicant’s evidence in relation to each of his claims was vague and lacking in any detail. His oral evidence was often confused and contradictory in nature. The applicant was not able to provide the Tribunal with specific details in relation to each of his claims including the number and dates of demonstrations he claims to have attended in Iran and independent evidence of his social media posts. Despite the stress of giving evidence before the Tribunal, and the fact that he may have a history of mental illness, the Tribunal expected the applicant to have been able to provide greater details in respect of each claim. The Tribunal does not expect the applicant to have a perfect recollection of each claim, but in circumstances where the events must have been stressful to the extent that the applicant claims that he suffered serious harm, the Tribunal expected the applicant to have some clear recollection of specific events and details relating to each claim. In this case the applicant had no such specific recollection as to each claim. As a result, the Tribunal has considerable concerns about the credibility of the applicant’s evidence in relation to each of his claims.
Accepted facts
49.Based on the applicant’s evidence, the Tribunal accepts and finds that:
(a)the applicant was born on [Date] in [County] Ilam, Iran.
(b)the applicant is an Iranian national and citizen.
(c)the applicant is an ethnic Kurd.
(d)the applicant is a Shia Muslim.
(e)the applicant’s parents are alive and continue to live in Tehran, Iran.
(f)the applicant has two sisters and two brothers all of whom continue to live in Iran.
(g)the applicant attended school in Tehran.
(h)the applicant did not attend College or University.
(i)the applicant worked in his father’s [business] in Iran.
(j)the applicant was married in Tehran and is now separated and in the process of becoming divorced.
(k)the applicant has two sons who were both born in Australia.
Applicant’s claim as a refugee
A past fear of persecution is not sufficient
50.A past fear may be a relevant consideration in determining if the applicant has a well-founded fear of persecution. The approach applicable under the Act is whether the applicant is outside his country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s.5J(1)(a) of the Act, and he is unable or unwilling, due to the present and well-founded fear, to avail himself of the protection of that country.[55]
[55] Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61] – [62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act
51.Findings in relation to past events can provide a rational basis from which to assess whether an applicant’s fear of being persecuted for a reason pursuant to s.5J(1)(a) of the Act is well-founded.[56] The extent to which past events are a guide to the future will depend on the probability that they have occurred, the regularity with which they occurred and the conditions under which they are claimed to have occurred.[57] In addition, the likelihood of such event occurring in the future will also depend on the introduction of any relevant new or other events.[58]
Applicants Grounds
[56] MIEA v Guo (1997) 191 CLR 559 at 574.
[57] MIEA v Guo (1997) 191 CLR 559 at 574–5
[58] ibid
52.The applicant submits[59] that his claims fall within s.5J(1)(a) of the Act on the following basis:
[59] Applicant’s submission dated 8 February 2022 AAT file No 1827638 Doc ID 10727818.
(a)his religion as a person who has denounced Islam and who has a [tattoo] on his [Body part].
(b)his ethnicity as an ethnic Kurd.
(c)his political opinion as a person who is seen as:
(i)against the Iranian government.
(ii)pro-western.
(iii)holds an anti-Islamic regime political opinion
(iv)a failed asylum seeker/returnee from a western country to Iran having lived in the west for 12 years.
(i)Applicant’s religion
53.The applicant claims to have a well-founded fear of persecution within the scope of the s.5J(1)(a) of the Act by reason of his religion as a as a person who has renounced Islam and who has a [tattoo] on his [Body part].
54.The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[60] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.
[60] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) @ [19] – [22])
55.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[61] as:
71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.
72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.
73Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’
[61] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71] – [73] question of whether an applicant has a well-founded fear of being persecuted because of his religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[62] It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[63] It requires an assessment of all the relevant circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[64]
[62] WZAOO v MIAC (2012) 134 332 @ [12], citing W161/01A v MIMA [2002] FCA 285. (To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith)
[63] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) @ [35].
[64] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)
57.In this case, the applicant claims that the essential and significant reason for him being persecuted by the authorities upon his return to Iran is because he has denounced Islam. He claims that because he has [a tattoo] on his [Body part], there is a real chance he will be identified as a person who has denounced Islam and be seriously harmed. Based on the applicant’s evidence to the Tribunal, it accepts that the applicant’s claim falls within the scope of the s.5J(1)(a) of the Act by reason of his religion.
(ii) Applicant’s political opinion.
58.The applicant claims to have a well-founded fear of persecution within the scope of the section 5J(1)(a) of the Act because of his political opinion. He claims that because of having attended demonstrations in Tehran and his brother having been detained at the Green Movement demonstration, he will be imputed with holding anti-government and anti-Islamic opinions. Further because he has lived in a western country for 12 years, he will be seen having a pro-western view.
59.For the purposes of the Convention a political opinion need not be an opinion that is held by the refugee. It is sufficient that such an opinion be imputed to the applicant by the persecutor.[65] In Saliba v MIMA the Court held:
... for Convention purposes, a claimant’s political opinion need not be expressed outright. It may be enough that a political opinion can be perceived from the claimant’s actions or is ascribed to the claimant, even if the claimant does not actually hold the imputed opinion.[66]
[65] MIEA v Guo (1997) 191 CLR 559 @ [571] referring to Chan v MIEA (1989) 169 CLR 379 @ [416], [433]
[66] Saliba v MIMA (1998) 89 FCR 38 @ [49]
60.The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) provides[67] that holding political opinions different from those of the government is not in itself a ground for claiming refugee status. An applicant must show that he has a fear of persecution for holding such opinions. Nevertheless, it may be reasonable to assume that an applicant’s opinion will, sooner or later, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have a fear of persecution for reasons of political opinion.
[67] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80] – [86]; Chan v MIEA (1989) 169 CLR 379 @ [392]
61.The UNHCR Handbook provides that in determining whether an applicant can be considered a refugee due to their political opinion, regard should also be had to the applicant’s personality, political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives and the nature of the law on which the prosecution is based. These elements may go to show that an applicant has a fear of persecution and not merely a fear of prosecution and punishment for a particular act.[68]
[68] UNHCR Handbook at [80] – [86]; Welivita v MIEA (Federal Court of Australia, Lindgren J, 18 November 1996).
62.In MIMA v Y, Davies J noted that ‘[t]he words “political opinion” are ordinary words of the English language and have not been the subject of judicial exposition limiting their meaning in the context of the Refugees’ Convention’.[69] The Court held that ‘in the context of the Refugees’ Convention, an opinion could be thought to be a political opinion if it were such as to indicate that its holder ... held views which were contrary to the interests of the State, including the authorities of the State.’[70]
[69] MIMA v Y [1998] FCA 515 @ [4] and [5].
[70] ibid
63.In C v MIMA,[71] Wilcox J found that the term ‘political opinion’ was broader than adherence to a political party or support for its policies.[72] The Court considered that the term ‘political opinion’ extends to any action which is perceived to be a challenge to government authority and included any action which constituted a challenge to a group opposed to the government.[73]
[71] C v MIMA (1999) 94 FCR 366.
[72] Ibid @ [375].
[73] Ibid @ [373]. In support of this point the Court cited the Canadian Supreme Court decision of Attorney-General of Canada v Ward (1993) 103 DLR (4th) 1. See also Devarajan v MIMA [1999] FCA 796 @ [26].
64.Based on the applicant’s evidence the Tribunal accepts that his claim does fall within s 5J(1)(a) of the Act by reason of his political opinion.
(ii)Applicant’s ethnicity
65.The applicant submits that his claims fall within s.5J(1)(a) of the Act by reason of his race as an ethnic Kurd.
66.In Calado v MIMA[74] the Court in considering the expression of ‘race’ stated that it was appropriate to consider the “popular” understanding of the term that accords with a person’s physical appearance, skin colour and ethnic origin.[75] The court stated:
‘There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’
[74] Calado v MIMA (1998) 81 FCR 450 at 455.
[75] ibid
67.In addition, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status also refers to the expression of ‘race’ in the broadest of terms stating:[76]
‘68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.
[76] Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ. UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ [68]; applicant claims that he is an ethnic Kurd. The applicant did not provide the Tribunal with any independent of him being an ethnic Kurd. Nevertheless, based on the applicant’s evidence the Tribunal accepts and finds he is an ethnic Kurd as claimed. As such, the Tribunal accepts that her claim falls within s 5J(1)(a) of the Act by reason of her race as an ethnic Hazara.
The Applicant’s well-founded fear
69.Section 5J(1)(a) of the Act requires that a refugee must have a ‘well-founded fear’ of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In Chan v MIEA[77] the Court (when considering the Convention) held that when considering ‘well-founded fear’ for the purposes of the Convention, it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[78]
[77] (1989) 169 CLR 379 at [396]
[78] ibid. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at [263] per Brennan CJ, Toohey, McHugh and Gummow JJ
70.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation. [79]
[79] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
71.In MIEA v Guo, the Court stated that:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. [80]
[80] MIEA v Guo (1997) 191 CLR 559 @ [572]; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at [293]
72.In this case, the applicant claims that if he is returned to Iran there is a real chance, he will be seriously harmed by the authorities due to his religion, political opinion, and race. For the reasons detailed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution, on an objective basis, if he is returned to Iran.
The Applicant as a stateless Faili Kurd.
73.In his Protection Obligations Determination dated 4 March 2011 and POD Declaration the applicant claimed that he was a stateless Faili Kurd a result of which he had suffered discrimination in Iran, including being denied access to education and work and the right to participate in social, cultural, and sporting activities. He claimed that as a Faili Kurd there was a real chance he would be seriously harmed by the Basiji. In his statutory declaration dated 26 September 2017[81] the applicant confirmed that he relied on his claims as a stateless Faili Kurd as detailed in the Independent Protection Assessment and Protection Obligation Determination.
[81] Applicant’s statutory declaration dated 26 September 2017, Dept File [reference].
74.However, the applicant’s oral evidence to the Tribunal and in his statutory declaration dated 31 January 2023,[82] was that he is not a stateless Faili Kurd as claimed. Rather, his evidence was that he is an ethnic Kurd and a citizen of Iran. The applicant confirmed that he departed Iran legally on his own valid passport.[83]
[82] Statutory declaration of applicant dated 31 January 2023 at [12]-[18], AAT file No 1827638 Doc Id: 10691853
[83] Op Cit at [24]-[27]; AAT file No 1827638 Doc Id: 10691853
75.The Tribunal has accepted and found that the applicant is an ethnic Kurd and a citizen of Iran as claimed. As such, the Tribunal finds that there no real chance the applicant will be seriously harmed as a stateless Faili Kurd if he is returned to Iran.
The Applicant’s attendance at demonstrations.
76.The applicant claims that there is a real chance he will be seriously harmed if he returns to Iran because of him having attended various protests in Iran including a Green Movement protest. The applicant’s evidence to the Tribunal was that despite having attended a Green Movement protest in 2009 he was not arrested or harmed.
77.The Green Movement refers to protests that occurred across Iran in 2009 and 2010 after the general election in 2009 challenging the election result and calling for the removal of Mahmoud Ahmadinejad as President.[84] It took its name from a green sash given to Mir Hossein Mousavi by Mohammad Khatami (Iran’s two-term president) and reached its height when approximately 3 million peaceful demonstrators turned out on Tehran streets to protest the election of Mahmoud Ahmadinejad at the 2009 presidential election.[85]
[84] United States Institute of Peace, The Iran Primer, ‘The Green Movement’ 6 October 2010;
[85] ibid
78.The country information reports[86] that the movement and its supporters did not play a significant role in the 2017-18 or 2019 protests. It’s reported[87] that the authorities are not interested in ordinary participants in the Green Movement and that the Green Movement has little profile in Iran today. It’s reported that those ordinary participants who avoided arrest face a low risk of official discrimination.
[86] DFAT Report at p.40
[87] ibid
79.The applicant’s evidence was that he merely participated in the protests. His evidence was that he was not arrested or harmed because of having participated in the demonstrations and protests as claimed. The applicant’s evidence in relation to his attendance at the demonstrations and protests was vague and lacking in any detail. He failed to provide any detailed evidence to the Tribunal about his involvement in the protests including when the protests occurred, what time he attended each protest, and who he attended the protests with. In addition, the applicant did not provide any independent evidence to the Tribunal about his involvement in the demonstrations as claimed. Finally, the applicant failed to refer to the fact that he attended any demonstrations (including the Green Movement protest) in his statutory declaration dated 31 January 2023[88] and in his submissions to the Tribunal.[89] Therefore, based on the applicants own evidence, the Tribunal does not accept that attended a Green Movement protest as claimed.
[88] Applicant’s statutory declaration dated 31 January 2023AAT file No 1827638, Doc ID:10691853
[89] Applicant’s submission dated 20 November 2022 AAT file No 1827638, Doc ID 10470297and Applicant’s submission dated 8 February 2022 AAT file No 1827638Doc ID 10727818
80.In any event, even if the Tribunal accepts that the applicant did participate in the protests as claimed (which the Tribunal has specifically found he did not) then, based on his own evidence and the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed because of having attended Green Movement protests as claimed.
81.In addition, the applicant claimed that by merely wearing green he would was associated with the Green Movement and at risk of being detained. His evidence included that he was in a taxi when he was stopped by members of Sepah because he was wearing a green shirt. The applicant’s evidence was that he left immediately and was not harmed. However, his evidence in relation to the incident was vague and lacking in any detail. The applicant did not explain how or when he was approached by Sepah, how they noticed him wearing green while he was in a taxi, how he was stopped and how he managed to depart the taxi once he had been stopped by the Sepah. As a result, the Tribunal has considerable reservations concerning the credibility of the applicant’s evidence about him being approached by authorities while wearing green clothing. In any event, the Tribunal notes that he was not harmed when he was approached for wearing green clothes. Therefore, based on the applicant’s evidence and the available country information referred to above, the Tribunal finds that there is no real chance that he will be seriously harmed if he is returned to Iran by reason of having worn green clothing as claimed.
The Applicant’s family
82.The applicant claims that his he and his family in Iran had come to the to the attention of the Basij because they had been involved in the Green Movement. As a result, he claimed that there is a real chance he will be seriously harmed if he is returned to Iran.
83.The applicant claimed that his brother attended the Green Movement protests and as a result was arrested and detained. The applicant provided the Tribunal a copy of a document (together with a certificated English translation) that states it’s from the ‘Department of Identity Verification of Isfahan’[90] and purports to be a record of the charges made against applicant’s brother by the Iranian authorities (‘the Record of Charges’). The Tribunal notes that the Record of Charges is a document from the authorities in the province of Isfahan. However, the applicant’s evidence was that of his four siblings, three continue to live in Tehran and one living in Ilam, Iran. [91] As such, it is not clear to the Tribunal why the document was obtained from Department of Identity Verification in the province of Isfahan and not from Ilam or Tehran, where his siblings live.
[90] Document from ‘Department of Identity Verification of Isfahan’; AAT file No 1827638, Doc ID:10890181
[91] Ilam is a Kurdish city and capital of Ilam Province, Iran and is located close to the Iran-Iraq border. Ilam Province is in the western part of the country and shares a border with Iraq. (see
84.In addition, the original Record of Charges includes a photograph of a male who the applicant claims to be his brother. However, no independent evidence in relation to the applicant’s brother’s identity was provided to the Tribunal. In addition, the document states that the fingerprint records of the ‘above mentioned was examined in order to obtain a background check certificate.’ However, despite noting that the fingerprints of the ‘above mentioned’ were checked, the applicant’s brother’s name is not recorded in the document. As such, the Tribunal has significant concerns about the credibility of the document provided.
85.The applicant’s evidence was that his brother was detained at a Green Movement protest while photographing spectators of the protest. He claims that his brother was held in detention for approximately two or three months. However, the Tribunal notes that the Record of Charges states that the person to which it refers was freed on bail [in] June 2009 (i.e. [Number] days after the election). In circumstances where the Iranian election was conducted on 12 June 2009,[92] based on the information contained in the Record of Charges, the Tribunal does not accept the applicant’s evidence that his brother was detained for a period of two to three months as claimed.
[92] Radio Free Europe ‘Iran to Hold Presidential Election in June 2009’ dated 7 September 2008ww.rferl.org/a/Iran_To_Hold_Presidential_Election_In_June_2009/1196953.html
86.The country information reports[93] that Iranian identity documents contain sophisticated security features and are difficult to manufacture for fraudulent use. However, paper-based documents such as court documents, summons, bank letters and academic certificates are relatively easier to obtain through fraudulent means. Therefore, in circumstances where the Record of Charges is from a province in Iran in which the applicant’s siblings do not live, the absence of evidence in relation to the applicant’s brother’s identity and the fact that the Record of Charges does not refer to the applicant ‘s brother by name, based on the available country information, the Tribunal finds that Record of Charges provided to the Tribunal is not a document that relates to the applicant’s brother as claimed.
[93] DFAT Report at p.72
87.The country information[94] states that after the 2009 Iranian election, demonstrations and riots broke out across Iran in protest to the election of President Mahmoud Ahmadinejad.[95] As noted above, it became known as the Green Movement having taken its name from the green sash given to Mir Hossein Mousavi by Mohammad Khatami (Iran’s two-term president and the reform movement’s first standard-bearer). As voter scepticism increased over the election result, clashes broke out between the police and groups protesting the election result. It’s reported[96] that initially the protests were peaceful but over time they became increasingly violent with young men throwing stones and bottles at security forces.[97] The security forces used force to disperse the crowds, with police attacking the demonstrators and protestors being carried away.[98] It’s reported[99] that the Green Movement reached its height[100] on 15 June 2009, when up to three million people across all sections of the society converged on Freedom Square in protest of official claims that Mahmoud Ahmadinejad had won the 2009 presidential election in a landslide.[101] While the security forces had previously dealt with protestors harshly, the rally on 15 June 2009 was held peacefully. [102] Nevertheless, it was reported that after dark the government militia fired on demonstrators killing at least one person.[103]
[94] CNN ‘Ahmadineejad hails election as protests grow’ 13 June 2009 edition.cnn.com/2009/WORLD/meast/06/13/iran.election/index.html
[95] News, ‘Tehran youth: I’ll never vote in Iran again’ 24 June 2009 by Dudi Cohen; ibid
[97] abc News International, ‘Election Battles Turn Into Street Fights in Iran’ Anna Johnston & Brian Murray 13 June 2009; The Guardian ‘Ahmadinejad wins surprise landslide victory’ by Ian Black 13 June 2009 http:/ TIME ‘Tehran’s Rallying Cry: We Are the People of Iran.’ by Nahid Siamdoust 15 June 2009; ibid
[101] ibid
[102] ibid
[103] ibid
88.The applicant’s evidence was that his brother was detained while at a protest at Revolution Square taking videos of people watching the Green Movement protest. The applicant’s evidence in relation to his brother’s arrest and detention was vague and lacking in detail. While he claimed his brother was arrested in Revolution Square, he was not able to say when the demonstration occurred. The applicant was not able to give the Tribunal any evidence in relation to his brother’s release from detention including the amount he claims was paid to the authorities to secure his brother’s release and the date and time of his release. The applicant claimed that he was not involved in his brother’s release. However, in circumstances where the applicant was working with his father and claims that his family were constantly harassed by the authorities, it would have expected him to have some knowledge of his brother’s detention and release, including the amount paid to secure his release from prison. Instead, the applicant’s evidence that his brother was held for a period of two to three months was not consistent with the Record of Charges provided to the Tribunal as evidence of the charges made against his brother. Therefore, based on the applicant’s evidence (including the Record of Charges) and the available country information, the Tribunal finds that the applicant’s brother was not arrested and detained at a Green Movement protest as claimed.
89.In the alternative, if the applicant’s brother was arrested and detained as claimed by the applicant (which the Tribunal has specifically found he was not), the applicant’s evidence was that his brother continues to live in Iran and has not had any further issue with the authorities since the time of his release from prison as claimed. The applicant’s brother was not an active supporter of the Green Movement. He was not participating in the protest but rather was there for the purpose of photographing spectators of the demonstration.
90.The country information reports[104] that the Green Movement has little profile today. It did not play a significant role in subsequent elections in Iran, including the 2017-18 and 2019 elections. As such it’s reported that [105] it would be highly unlikely that those arrested at the time would remain imprisoned or be subjected to any continuing surveillance or harassment, including being prevented from accessing employment in the public service or private sector. In fact, ordinary participants in the Green Movement are of no interest to the authorities today.[106] DFAT reports that family members who were briefly detained and arrested for their participation in the Green Movement and subsequently secure asylum abroad, have been able to regularly return to Iran without experiencing any harassment or harm. Therefore, even accepting the applicant’s evidence (which the Tribunal has specifically not accepted), based on the applicant’s evidence and the available country information, the Tribunal finds that there is no real chance the applicant will be harmed because of his brother being arrested and detained at the time of the Green Movement protests as claimed.
[104] DFAT report at p.40
[105] ibid
[106] ibid
91.Finally, the applicant claims that he and his family have had thousands of encounters with the authorities. The applicant’s evidence in relation to his family’s encounters with the authorities was vague and lacking in any detail. Nevertheless, the applicant claimed that he had attended Green Movement demonstrations and other protests at which he had been kicked by members of the Basij. In addition, he claimed that he had been approached by Lebanese guards while with friends in a park. His evidence was that on each occasion he was not harmed. The Tribunal notes that the applicant failed to refer to his attendance at the Green Movement protests in his statutory declaration dated 31 January 2023[107] and made no reference of the fact in his submissions to the Tribunal.[108] As such, the Tribunal has considerable credibility concerns about the applicant’s evidence that he attended the green Movement and other demonstrations as claimed. Nevertheless, the Tribunal notes the country information concerning the Green Movement referred to above which states that the Green Movement has little relevance in Iran today and that ordinary participants in the Green Movement are of no interest to the authorities.[109]
[107] Applicant’s statutory declaration dated 31 January 2023AAT file No 1827638, Doc ID:10691853
[108] Applicant’s submission dated 20 November 2022 AAT file No 1827638, Doc ID 10470297and Applicant’s submission dated 8 February 2022 AAT file No 1827638Doc ID 10727818
[109] ibid
92.In circumstances where the applicant may have been suspected of having engaged in activities against the interest of the state, such as a violent demonstration,[110] any interest shown in him by the authorities may have been merely an application of the general law and not systematic or discriminatory in nature.[111] In Applicant A v MIEA (1997)[112] Brennan CJ noted, when considering the Convention, that any feared persecution must be discriminatory. That is, the reasons detailed in s 5J(1)(a) of the Act. His Honour noted that this qualification ‘excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application.’[113] From the evidence presented by the applicant any encounter by him or his family with the authorities appeared to be because of activities that they were undertaking, such as participating in a demonstration or gathering, the result of which the applicant was not harmed. In such circumstances, it is difficult to see how any such encounter would be systematic or discriminatory as required under the Act.
[110] WADL v MIMA [2002] FCAFC 276.
[111] Applicant A v MIEA (1997) 190 CLR 225 at 258
[112] Applicant A v MIEA (1997) 190 CLR 225 at 258
[113] ibid
93.Accordingly, based on the applicant’s evidence and the available country information the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Iran by reason of encounters he and his family have had with the Iranian authorities as claimed.
The Applicant as an ethnic Kurd.
94.The applicant claims that as an ethnic Kurd there is a real chance he will be seriously harmed if he is returned Iran. The applicant did not specify how he would be persecuted in Iran as an ethnic Kurd save to say that as a Kurdish person, he would face serious harm in combination with his other claims.[114]
[114] ibid
95.The country information[115] reports that there is an estimated 8 million Kurds living in Iran. The Kurdish population is concentrated in the northwestern provinces of Iran that border the Kurdish population regions of Iraq and the Republic of Türkiye.[116] Most Kurds in Iran are Sunni Muslims. While Sunni Islam is recognised by the state, the religious institutions of Sunni Kurds are blocked while those who are Shia are encouraged and supported by the state.[117] In this case the applicant’s evidence was that he was Shia Muslim, albeit non practicing.
[115] DFAT Report at p.26
[116] ibid
[117] Amnesty international ‘Iran: Human Rights abuses against Kurdish Minority’ published 2008. http:/ authorities in Iran are sensitive to Kurdish organised political activity. [118] It’s reported[119] that the Kurds still harbour ‘separatist tendencies’ and that several militant groups occasionally clash with the Iranian security forces as they continue to promote Kurdish self-determination.[120] These include Kurdistan Free Life Party (PJAK), the Kurdistan Democratic Party of Iran (KDPI) and the Komala Party of Iranian Kurdistan.[121] Almost half of the political prisoners in Iran are Kurds charged with national security offences.[122] In addition, Kurdish prisoners proportionately constitute a high number of those who receive the death penalty and are executed. [123]
[118] ibid
[119] DFAT Report at p.26
[120] ibid
[121] ibid
[122] ibid
[123] ibid
97.The government uses media and other laws to arrest and prosecute the Kurds for exercising freedom of expression and association. Kurdish language newspapers, journals, and books have been banned, and the Kurdish language is prohibited from being taught in most schools and universities.[124]
[124] ibid
98.In October and November 2022, the Iranian security forces used excessive and unlawful lethal force against antigovernment protesters in Kurdistan province's capital, Sanandaj.[125] The Security forces used shotguns and assault rifles firing live ammunition, pellets, and teargas at protesters, killing at least six people.[126] It’s reported that the government’s ‘brutal response’ to the protestors reflect its long-time repression of the Kurdish people’s cultural and political freedoms.[127]
[125] Human Rights Watch, ‘Iran: Brutal Repression in Kurdistan Capital’ 21 December 2022;
[126] ibid
[127] ibid
99.It’s reported that the practice of ‘gozinesh’ has been used to marginalize Kurds and other minorities to deny them employment in the state sector.[128] The Gozinesh Law was passed in 1985 and has the effect of prohibiting several religious and ethnic minorities from fully participating in civil life. It makes access to employment, education, and a range of other areas conditional upon a rigorous ideological screening, the principal prerequisite is to demonstrate allegiance to the state religion.[129] In this case, the applicant’s evidence was that he is a Shia Muslim and prior to his departure for Iran was employed in his father’s business.
[128] Amnesty international ‘Iran: Human Rights abuses against Kurdish Minority’ published 2008. http:/ Impact Iran, “Legislation Monitor’, May 2021 http:/impactiran.org/2022/04/14/legislation-monitor-selection-law/
100.Nevertheless, DFAT reports[130] that Kurds are not specifically targeted for discrimination based on their ethnicity or religion. They can access government services and are afforded the same state protections as other ethnic minorities.[131] However, the country information[132] indicates that those Kurds who are active politically (for example advocating for autonomy or self-determination) are likely to receive adverse attention from the authorities. In this case there was no evidence that the applicant was a member of any militant or political group in Iran or in Australia. The applicant has not been a member of any organisation that expressed antigovernment views. There was no evidence to suggest that the applicant would become politically active upon his return to Iran. The Tribunal notes that despite his claim that his family were harassed and harmed in Iran, his siblings continue to live in Iran without being harmed. In addition, while the applicant’s evidence was that he had attended the Green Movement protests in 2009, he was not arrested or harmed. As referred to above the country information states that ordinary participants in the Green Movement are of no interest to the authorities today.[133]
[130] DFAT Report at p.27
[131] ibid
[132] ibid
[133] ibid
101.Therefore, based on the applicant’s own evidence and the available country information the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iran as result of being an ethnic Kurd as claimed.
The Applicant’s religion
102.The applicant claims that there is a real chance he will be seriously harmed if he is returned to Iran because he has person who has renounced Islam and has a [tattoo] on his [Body part].
103.The applicant’s evidence was that he is a Shia Muslim but no longer practices his religion. The country information reports that around 90-95 percent of Iranians are Shia Muslims. Iran is a theocracy with Islamic beliefs and customs enshrined in the law.[134] Art 4 of the Constitution requires all laws and regulations to be based on Shia Islamic criteria.[135] The country information[136] reports that the concept of velayat-e faqih is a system of government by which all political and religious authority is transferred to the Shia clergy and by which all key decisions of the state are subject to approval by a supreme clerical leader, the vali-e faqih (known as the guardian Islamic jurist). The supreme clerical leader (the faqih) provides guardianship (velayat) over the nation and, in doing so, ensures the top-down Islamisation of the state.
…
STATE PROTECTION
5.1Security forces are conspicuous in many aspects of Iranian life. An extensive network of police, security and intelligence services exercises effective control over most of the country (see Security Situation). Lines of authority between various security bodies can be blurred, with overlapping and competing responsibilities and, occasionally, unclear command and control structures. For ordinary Iranians, interaction with the security forces can be unpredictable, and can be influenced by the prevailing political environment and individual personalities. A number of offices exist to enable individuals to register complaints of human rights violations and improper treatment by security forces, and the judiciary is responsible for prosecuting these cases. DFAT is unable to establish whether a complaints office exists for the IRGC or the Basij. DFAT assesses it is unlikely that a complaint from a member of the public against a law enforcement officer from any agency would result in prosecution.
Islamic Revolutionary Guards Corps (IRGC)
5.2The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. Ayatollah Khomeini established the IRGC after the 1979 revolution to enforce his concept of an Islamic state governed by a Velayat-e-faqih (see Political System). The IRGC played a crucial role in suppressing early opposition to Khomeini’s vision and in repelling the 1980 Iraqi invasion. Since then, the IRGC has eclipsed the regular military as Iran’s pre-eminent internal and external security force. The IRGC operates substantial land, sea and air forces independent of the regular military, including the Basij (see Military and Basij Resistance Force). The IRGC also has a cyber command and a powerful intelligence arm that conducts domestic intelligence operations, including against political activists. The IRGC maintains its own detention facilities. The IRGC helped to suppress the Green Movement demonstrations in 2009 and, together with other parts of the security apparatus, played a role in responding to the December 2017, January 2018 and November 2019 protests.
5.3Over time, the IRGC has transformed into a leading economic and political actor. The IRGC and its associated companies are deeply enmeshed in the Iranian economy, with significant interests in the energy, construction, telecommunications, banking, shipping and financial sectors. In addition to its strength in the security and economic spheres, the IRGC wields significant influence in domestic politics and foreign policy. The IRGC is estimated to have about 150,000 active personnel, divided into land, sea and air forces. The land forces are the largest, estimated at between 100,000 and 125,000 personnel, and have a presence in all of Iran’s 31 provinces; the navy at up to 20,000; the air force at up to 20,000; and the elite Quds Force at up to 5,000. The Quds Force is responsible for the IRGC’s external operations. The head of the IRGC is appointed by, and reports directly to, the Supreme Leader. According to international observers, the IRGC’s top leadership comprises conservatives and hardliners who are deeply opposed to political reform. The rank[1]and-file of the organisation reflects Iranian society and politics at large, and includes many reformist members. The US designated the IRGC, in its entirety, a foreign terrorist organisation in April 2019 (the IRGC’s senior leadership and most IRGC-controlled state-owned enterprises were the subject of pre-existing US sanctions).
Basij Resistance Force
5.4The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force that operates under the command of the IRGC. The Basij was established shortly after the Islamic Revolution as an auxiliary law enforcement unit and was brought under the direct command of the IRGC in 2007. The Basij is one of the primary enforcers of internal security and moral codes, including in relation to Islamic dress. The Basij has a countrywide presence, with branches in virtually every Iranian city and town. The Basij maintains three primary armed wings: (1) the Ashoura and Al-Zahra Brigades, which are tasked with defending neighbourhoods in the event of emergencies; (2) the Imam Hossein Brigades, which comprise war veterans and cooperate closely with IRGC ground forces; and (3) the Imam Ali Brigades, which deal with security threats. The IRGC also has multiple branches with specialised functions. According to the United States Institute of Peace, each of these specialised branch’s functions as a counterweight to NGOs and the perceived threat they pose to the state. For example, the Labor Basij provides a counterpart to labour organisations, unions and syndicates, while the Student Basij balances independent student organisations. The Basij is headed by a commander appointed by, and answerable to, the Supreme Leader.
5.5Estimates of the total number of Basiji vary widely. In 2009, the IRGC commander claimed the Basij had 11.2 million members; however, independent sources cite considerably lower figures (the US Council on Foreign Relations estimates the Basij’s strength at 600,000). Not all Basiji are uniformed. As such, the Basij’s presence on the street is not always overt and obvious. Its membership includes both sexes and a wide range of ages, although the majority are between high school age and mid-30s. Membership of the Basij comes with privileges, including in relation to university admission, government jobs and bank loans. Local mosques provide background information about each volunteer applicant, and also serve as the Basij headquarters for the neighbourhood. For full-time paid positions, applicants must apply to the Basij’s provincial headquarters.
5.6The state has periodically mobilised the Basij to suppress anti-government protests, including during the November 2019 unrest and Green Movement demonstrations. Basij members often receive less formal training than other Iranian security forces. International sources report that Basij units often repress political opposition elements and intimidate civilians perceived to be violating Iran’s strict moral code without formal guidance or supervision from their superiors. DFAT assesses that there is considerable popular resentment against the Basij, although this may vary according to location.
…
Police
5.8The Law Enforcement Force (also known as the Disciplinary Force or the abbreviation NAJA) is Iran’s uniformed national police force, and operates under the Ministry of Interior. It is responsible for internal security, although receives support from the IRGC and the Basij in quelling large-scale protests. The exact size of the police force is unclear. It comprises a number of specialised branches, including (but not limited to): traffic; cyber; prevention; intelligence and public security; anti-narcotics; immigration and passport; diplomatic; criminal investigation; border guard command; and the special unit. The special unit is responsible for suppressing riots, anti-terrorist activities, urban defence and resolving hostage situations. The police have an obvious street presence, particularly in the major cities. The police force is highly organised, including in responding to crime. The level of violent crime in Iran is low relative to other countries in the region (see Security Situation).
……………….
Judiciary
5.10Chapter 11 of the constitution outlines the functions of the judiciary, affirms its independence and provides for a judicial system based on sharia (Islamic law). The Supreme Leader appoints the head of the judiciary for renewable five-year terms. The head of the judiciary must be a cleric who can interpret sharia (a ‘Mujtahid’), and is responsible for hiring, assigning, promoting and firing judges. Most judges are clerics trained in Islamic jurisprudence. The Supreme Leader nominates the chief of the Supreme Court and the prosecutor-general, who must also be Mujtahids.
5.11The constitution establishes civil, criminal and military courts. Prosecutions originate in lower courts and can be appealed to higher courts. The Supreme Court reviews cases of capital offences and rules on death sentences. It has responsibility for ensuring proper implementation of the laws and uniformity of judicial proceedings. Regular courts (known as public courts) mainly deal with the civil and criminal matters of the common public. These courts are functionally classified according to their area of jurisdiction (civil or criminal), and according to the seriousness of the crime or the litigation. In the first instance, family law matters (including marriage, divorce and custody) come under the jurisdiction of the court allocated to family matters. Criminal courts comprise first level courts, which have jurisdiction over prosecution for felony charges, and second level courts, which try cases involving lighter punitive action. Iran has nearly 600 public courts. The right of appeal is guaranteed but limited in practice, particularly in national security-related cases.
5.12The judiciary also includes Revolutionary Courts and Special Clerical Courts, both established pursuant to decrees from Ayatollah Khomeini. Neither court has been incorporated into the constitutional clauses that define the role and structure of the judiciary. Some legal experts have unsuccessfully challenged these courts’ legal standing. Revolutionary Courts deal primarily with prosecutions involving acts against national security, as well as drug smuggling and espionage, and issue most death sentences. They do not use juries, and trials are frequently closed to the public. Revolutionary Court judges fulfil additional roles as prosecutors and mediators. Revolutionary Courts often do not allow defence attorneys. Orders issued by the Revolutionary Courts are final and binding in penal/criminal affairs in most instances although, in limited cases (including capital cases), the defendant has the right of appeal. Special Clerical Courts deal with alleged offences committed by clerics, including political statements inconsistent with government policy.
5.13Human rights observers criticise the judiciary for its lack of independence and denial of due process to detainees, and for the failure of trials to meet international standards of fairness. Freedom House claims the judicial system is used to silence state critics and members of the political opposition. The security establishment, particularly the IRGC, is thought to wield influence over the judiciary. The Special Rapporteur on the situation of human rights in Iran has consistently expressed concern about the lack of independence in the judicial system, particularly the Revolutionary Courts. In relation to the latter, the Special Rapporteur has noted a common pattern of short trials, after which the verdict is rarely published or provided in written form, and the issuance of long prison or death sentences. Writing to the HRC in March 2018, the Special Rapporteur reported a pattern of due process violations and denial of a fair trial with respect to human rights defenders, trade unionists, journalists, political opposition, members of the opposition, minority and religious groups, and foreign and dual nationals. DFAT shares the Special Rapporteur’s concerns. DFAT assesses that defendants charged with national security offences may spend long periods of detention without charge and are unlikely to receive a fair trial.
5.14In June 2018, the head of the judiciary implemented the Note to Article 48 of the Code of Criminal Procedure. This denies individuals facing national security charges the right to access a lawyer of their choosing. Defendants must instead select from a list of 20 lawyers approved by the head of the judiciary. The list is made public and the judge has the right to reject a lawyer. A planned amendment to the Note to Article 48 could deny individuals arrested on national security charges access to a lawyer for 20 days, which could be extended to cover the entire investigation phase. In August 2019, the head of the judiciary announced a review into Article 48. The status of the law was unclear at the time of publication, and there was wide public criticism regarding the planned amendment.
5.15Bribery of judges occurs, and rich Iranians and/or Iranians with political connections have the ability to influence judicial outcomes. The authorities have attempted to clamp down on judicial corruption, and there have been cases of judges suspected of corruption being dismissed and/or prosecuted (including five judges dismissed for alleged corruption on 13 October 2019).
Detention and Prison
5.17Article 39 of the constitution states that all affronts to the dignity and repute of persons arrested, detained, imprisoned or banished in accordance with the law are forbidden and liable to punishment. The Prisons Organisation is responsible for the administration of prisons, while the judiciary is the responsible ministry. According to the Institute of Criminal Policy Research’s World Prison Brief, in 2018 Iran had a total prison population (including pre-trial detainees and remand prisoners) of 240,000, over one-third of whom were convicted of drug-related crimes. The official capacity of the national prison system is 150,000. The authorities allegedly maintain unofficial secret prisons and detention centres outside of the national prison system. The MOIS and the IRGC maintain their own detention facilities.
5.18Prison 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, and of political prisoners being held with the general population (placing them, in turn, at higher risk of violence from other prisoners). Pre-trial detainees are occasionally held with convicted prisoners, and juvenile offenders with adult offenders. Female prisoners are held separately from male prisoners. According to international sources, the authorities often arbitrarily revoke privileges such as access to visitors, telephone contact and other correspondence. It is common for individuals charged with national security offences to be held in solitary confinement, often for long periods. Hunger strikes by prisoners are frequent. In December 2018, a political and human rights activist in Qom Province died after a 60-day hunger strike in protest at the prison conditions in which they were being held.
5.19DFAT understands that the granting of rights to prisoners is highly variable and depends on the individual circumstances of the prisoner, including their category and location. Official channels exist for prisoners to submit complaints to judicial authorities, but they often face censorship and retribution for doing so. While the government does not permit independent monitoring of prison conditions, it has occasionally permitted visits by foreign delegations. President Rouhani has enjoined the judiciary to improve prison conditions. In July 2017, around 50 Tehran-based diplomats visited Evin Prison (one of the country’s primary detention facilities) at the invitation of the government. DFAT assesses that such visits are of limited value in providing an accurate picture of conditions within Iranian prisons.
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TREATMENT OF RETURNEES
Exit and Entry Procedures
5.22Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, the United Arab Emirates and Australia. Iranian nationals must pay an exit tax each time they depart Iran, which increases with each outbound journey. Payments of exit taxes are made at the airport, as one is departing Iran. An exit permit for foreign travel is required for Iranians employed in fields considered sensitive (e.g. employees of the Iranian Atomic Energy Organisation); those studying abroad (whether on government scholarships or privately-funded); and all males aged 18-30 who are yet to complete military service (principally those who have deferred military service to undertake tertiary studies). To obtain an exit permit, one must provide proof of their status (e.g. a letter from their university confirming their enrolment) and pay a bond (the bond is retrievable on return). Iranian nationals resident in Iran who require an exit permit must obtain one each time they leave the country (multiple exit permits are not available for Iranian nationals resident in Iran). Application for, and issuance of, an exit permit, where it is required, is done electronically.
5.23In some cases, citizens require special permission to obtain a passport (see also Passports). This includes minors under the age of 18, who require the permission of their father/custodian; males who have not completed their military service, who must present authorities with their military service exemption or the written permission of the Public Military Service Department; and married women, who require their husband’s permission. Iranian citizens residing abroad who are not under the obligation of military service can apply for the issuance of a multiple exit permit through the Ministry of Foreign Affairs. They are required to provide completed forms detailing their place of residence and requesting a multiple exit permit, evidence of the completion of (or exemption from) military service, the original and photocopies of their existing passport and photocopies of pages related to their previous travel to Iran, a photocopy of their residence permit and two passport photographs. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.
5.24The authorities impose travel bans on some Iranian citizens. Reasons for a travel ban can include security concerns, financial debts, outstanding taxes and outstanding sentences awaiting enforcement. Citizens with ongoing charges or outstanding court matters and those released on bail or parole are subjected to travel bans. Civil and political activists may be subjected to travel bans. In some cases, individuals must obtain the permission of others to leave the country: the husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. MOIS and the IRGC have the power to impose travel bans without recourse to the judiciary. Iranians under travel bans are often unaware of their status until they reach passport control at the airport and are turned back. The presence of security organisations in all Iranian airports, particularly those with border checkpoints, enables authorities to determine whether any Iranian citizen can leave the country by air.
5.25DFAT assesses that leaving Iran through irregular means is more likely to be achievable overland (particularly in rugged mountain areas) than via air or sea, including for registered and unregistered refugees. Under Iranian law, smuggling people into or out of Iran is a crime punishable by up to 10 years’ imprisonment. The law against people smuggling applies to all Iranian nationals, including those outside the country.
5.26Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, but DFAT understands this practice is not consistent.
Conditions for Returnees
5.27Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 and who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
5.28The IOM runs a program to assist voluntary returnees to Iran, in cooperation with the country from which they are returning. Iranian authorities cooperate with the IOM in this regard. In cases where an Iranian diplomatic mission has issued temporary travel documents, authorities will be forewarned of the person’s imminent return. DFAT is not aware of any legislative or social barriers to voluntary returnees finding work or shelter in Iran, nor any specific barriers to prevent voluntary returnees from returning to their home region. Some countries offer failed asylum seekers financial packages to support their reintegration on return to Iran. The IOM also provides some resettlement assistance to voluntary returnees who fail to secure asylum in a third country.
5.29Authorities 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.
5.30International 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.
5.31DFAT 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.
ANNEXURE B
Extract from EAL022 Positive IPA Recommendation 31 October 2012, Dept File No. [number]
…
Accepted claims, findings and reasonsAs noted above, I have accepted that the claimant is an undocumented Faili Kurd born and
raised in Iran. I acknowledge that, as such, he cannot access a number of goods and services
available to citizens. Undocumented Faili Kurds do not have the right to work. However, they
circumvent this rule by being self-employed (like being street vendors) or working at cash-in-hand jobs for employers who are prepared to risk the fines that can be imposed for employing
illegal workers. The employers find this risk worth their while because they pay illegal
workers substantially less than they do citizen workers. In the claimant’s family, the men
have taken both sorts of employment. The claimant’s father works for an employer in a
[business] and is obviously well-regarded in that workplace as he has been
able to find employment there for two of his sons (the claimant’s brothers). The claimant,
however, became self-employed, selling [Product 1s] in the street and later selling [Product 2s] from an impromptu stand he set up at the market. This sort of work can be precarious because the
visibility of illegal street vendors makes them a target for Basij or council shop inspectors
who move them on. I accept the claim that on many occasions, the claimant had to pay off the
basij, given them whatever money he had on him. I also accept his claim that if he did not
have money, they confiscated his goods. Losing his money or his goods clearly affected his
income adversely and I accept that at times he may have had no money for necessities.
However, there are no claims, nor does the evidence suggest, that his capacity to subsist was
threatened by this hardship. That is because he lived with his family and the family shared
accommodation, food, and the necessities of life.Non-citizens cannot access Iran’s national health insurance and therefore have to pay
privately for any medical or pharmaceutical treatment, which can be expensive. The claimant
has made no claims, nor does the evidence suggest, that his life has been at risk through
denial of health services. At hearing, he talked of his wife’s miscarriage in [Year] and I
specifically asked if she had seen a doctor, to which he replied that she had.
The claimant has made no claims, nor does the evidence suggest, that he has ever suffered
mistreatment such as beatings or detentions at the hands of the authorities, nor has been
charged with any offence even though he broke the law for a decade by being out in the
streets vending illegally. He said he had been harassed and humiliated but when I asked for
examples of such treatment, he said that he was abused by a Basij for wearing a short-sleeved
shirt. In any one’s view, this falls far short of persecution. When I asked for examples of
discriminatory treatment towards Faili Kurds, he said that they could not hire public spaces
for weddings because they could not show ID. This criterion would apply to any non-citizens
and does not seem to me to be discrimination against Faili Kurds per se.In short, the claimant has not put forward any testimony that indicates that he has suffered
serious harm in the past for a Convention reason. Indeed, he seemed to find the situation in
Iran more tolerable than the situation in immigration detention in Australia. The claimant
informed his case manager on 18 June 2012 that he and his wife wished to return to Iran. He
said at hearing that he did this because “he and his wife were sick of being in limbo” (see
page 8 above). I note that at the time of this request, the claimant had been living in
community accommodation since August 2011, so it was not the effects of a detention centre
that caused them to want to leave Australia.A request to return to a country of origin indicates, in my view, that the person has no real
fear that serious harm will befall him if he returns. In other words, it indicates that the claimant does not have a well-founded fear of serious harm amounting to persecution in his
country of origin. I put this to the claimant and he said his life would be in danger in Iran.
When I put it to him that nothing remotely suggesting danger to his life had ever happened to
him in Iran he said that he now had a [tattoo] of [Image 1] on his [Body part]. In other words, the
claimant was presenting a sur place claim. This then raised the question of whether he had
obtained this tattoo with the intention of using it to make or strengthen a refugee claim.
Section 91R(3) provides that in determining whether a person has a well-founded fear of
being persecuted for one or more of the Convention reasons, any conduct engaged in by the
person in Australia must be disregarded unless the person satisfies the Minister that he or she
engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be
a refugee.The claimant’s lawyer made the point that the deliberate acquisition of a tattoo as a means of
avoiding repatriation would not have occurred to the claimant because he had no experience
of any Faili Kurd asylum-seeker in Australia ever having been repatriated to Iran. This is a
cogent point. The claimant himself said that he had admired the tattoos sported by someone
in the detention centre, and that when he was in a position to do so – that is, when he was
released into the community – he sought out the tattooist via a friend of his who had already
availed himself of the tattooist’s services. The claimant said he chose the design out of a book
of designs presented to him: he loved the design and any Christian inferences it might have
did not occur to him. I am inclined to the claimant’s point of view. The design itself is
decorative with [description]. My first impression placed it in the [style of design]. However, another person might initially
focus on the [Specific part of design] and read it as clear Christian
symbolism. The point is that different people can see the tattoo design in different ways and I
accept that the claimant saw it as a beautiful design which would fill the designated space (his
[Body part]) nicely.I note that the claimant has no education in, nor background knowledge of, Christian
symbolism, not even that which those in the west who are not churchgoers absorb from
widely used imagery. I accept that the claimant was disconcerted when his friends –
presumably other young Farsi-speaking Muslims from the asylum-seeker population, given
his circumstances – questioned him about whether he had converted to Christianity. The
claimant seemed genuinely upset that his tattoo has become the source of problems for him. He has not converted to Christianity: in fact, he has little interest in any religion. He remains
nominally a Shia Muslim because that is what he was born. However, the questions asked by
his friends alerted him to the range of constructions that can be placed on the tattoo and made
him realise that the Iranian authorities would take the worst possible view of it.That, of course, brings into question why he volunteered for repatriation after his tattoo and
after he realised how the authorities in Iran might view it. The answer seems to lie simply
with the claimant’s explanation: he was frustrated in Australia, having been nearly two years
without a resolution to his visa application, and he was experiencing personal difficulties
living with his in-laws. The request for repatriation was simply a cry for help and not a
genuine effort to return to Iran.I am satisfied that the claimant did not engage in particular conduct in Australia – getting a
tattoo – for the purpose of strengthening his claims to be a refugee. I am satisfied that he got a
tattoo because he had wanted one for some time and finally was able to fulfil his wish. Many
young people admire and acquire tattoos and like them, the claimant gave no thought to any
broader implications.I turn now to a consideration of the consequences for the claimant of returning to Iran with a
[tattoo] that can be seen as a [reference to] the Christian religion.The information set out at pages 11-13 above indicates that there is increasing intolerance on
the part of the authorities towards young people wearing western-style clothes, including
tattoos. The information indicates that “individuals found in violation of the dress code can
be fined or arrested. In 2010, Agence France-Presse reported that the penalty for
contravening the dress code had increased to 13 million IRR. The Washington Post reported
in 2011 that fines and punishments, which sometimes include whipping, have been
increased” (see page 12 above). The claimant has a very westernised appearance and if
returned to Iran would be wearing the clothes he acquired in Australia, to his own taste. He
would be noticeable. On further examination, the authorities would find the tattoo. Tattoos of
whatever kind are frowned upon, according to the evidence, but one displaying a Christian
symbol would be viewed even more seriously.Iran is a theocratic state and, according to the country information, “the government enforced
harsh legal and policy restrictions on religious freedom. During the reporting period, respect
for religious freedom in the country continued to deteriorate. Government rhetoric and
actions created a threatening atmosphere for nearly all non-Shia religious groups” (see page
13). British Foreign Office sources report that “Under Iran‘s strict interpretation of Islam, anyone converting to another religion could face the death penalty or at least life imprisonment”
(A letter from the Foreign and Commonwealth Office dated 30 April 2010, in UK Border
Agency, Country of Origin Report: Iran, 28 June 2011, para.19.20). The claimant’s sporting of
such a [tattoo of Christian symbolism] could be perceived as a sign of his
faith: that he is a Christian. However, “the government automatically considers a child born to
a Muslim father to be a Muslim”. On seeing the claimant’s tattoo, there is a real chance that
the authorities would think “the claimant was a Muslim, but he is now wearing a Christian
symbol, therefore he must have converted”. This is not allowed and, indeed, is severely
punished as the British Foreign Office report said.On the evidence before me, I am satisfied that there is a real chance that the claimant would
be identified and questioned by the authorities, if he were to return to Iran, due to his travel
papers. (That is, he would not be travelling on a passport but on a laisser-passer of some
sort). His western appearance would be noted and in conjunction with his sojourn in a
western country, he would be imputed to hold anti-Islamic values. A closer examination of
the claimant would reveal the tattoo and this could be seen as a Christian symbol. The
claimant may be imputed to hold Christian views (again reinforced by the fact that he has
spent two years in a western country) and therefore anti-Islamic opinions. I am of the view
that, minimally, he would be detained for some time, even if he were not charged with any
offence. At worst, he would be charged with a serious offence carrying a severe penalty.
Even the minimal fate – deprivation of liberty by being held without charge in prison –
constitutes serious harm amounting to persecution, in my view, especially in light of the
independent evidence set out at page 14 above. I note the information from the International
Campaign for Human Rights in Iran, in discussing the case of a Christian pastor sentenced to
death for apostasy, that “More and more, the Iranian judiciary is departing from any
recognised form of due process, issuing arbitrary judgements based on vague, open-ended
laws. Laws and evidence are increasingly irrelevant and unrelated to judicial outcomes in
Iran” (ICHRI, 7 December 2010 at rights.org). I note that the Iranian
attitude against Christianity is hardening and that a new law bringing apostasy into the
criminal code (in contrast to its present status simply under Sharia law) is awaiting adoption
(see UK Home Office, op.cit., paragraphs 19.24-19.27).I am satisfied that there is a real chance of serious harm amounting to persecution befalling
the claimant in the reasonably foreseeable future if he were to return to Iran for reason of his
imputed anti-Islamic views. “Anti-Islamic views” covers both imputed religious views and
imputed political opinion because in a theocracy like Iran, religion and politics are
inextricably intertwined. Hence it follows that the claimant has a well-founded fear of
persecution in Iran for a Convention reason.
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