1833723 (Refugee) - [2024] AATA 4288

1833723 (Refugee) [2024] AATA 4288 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Hassan Izadnia (MARN: 1571846)
CASE NUMBERS:  1833723 & 2215116
COUNTRY OF REFERENCE:                  Iran
MEMBER:Jason Pennell
DATE:18 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second applicant satisfies s 36(2)(a) of the Migration Act 1958 (the Act); and
(ii)that the first applicant, third applicant and fourth applicant satisfy s 36(2)(b) of the Act based on membership of the same family unit as the second applicant.

.
Statement made on 18 March 2024 at 9.44am

CATCHWORDS
REFUGEE – protection visa – Iran – father’s previous arrival by boat, application for protection refused and voluntary departure – parents’ arrival by boat – members of family unit Australia-born children – combined hearing and decision of separate applications by parents and children – ethnicity, political opinion, religion and membership of particular social groups – Ahwazi Arabs – father a member and employee of organisation who leaked information about organisation’s involvement in attack – house searched and brother arrested and questioned – brother now holds protection visa – conversion from Islam to Zoroastrianism – community cultural activities and anti-government protests in Australia – vague claims and limited supporting evidence – mother’s claim as westernised woman – children’s education and physical health – country information – systematic and discriminatory treatment and real risk of harm – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), 5L, 36(2)(a), (b), 65

Migration Regulations 1994 (Cth), r 1.12(2), (4)

CASES

C v MIMA (1999) 94 FCR 366

Calado v MIMA (1998) 81 FCR 450

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

MIMA v Darboy [1998] FCA 931

MIMA v Khawar (2002) 210 CLR 1

MIMA v Y [1998] FCA 515

Nagalingam v MILGEA (1992) 38 FCR 191

Pei Lan He v MIMA [2001] FCA 446

Prasad v MIEA (1985) 6 FCR 155

Saliba v MIMA (1998) 89 FCR 38

Savvin v MIMA [1999] FCA 1265

VCAD v MIMIA [2004] FCA 1005

WZAOO v MIAC (2012) 134 ALD 332

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 13 November 2018 to refuse to grant the applicants Temporary Protection (XD-785) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicants, who claim to be citizens of Iran, applied for the visa on 19 February 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).

In relation to case no 1833723, [the first applicant] and [the second applicant] lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 16 November 2018 (the first case). They provided the Tribunal with a copy of the delegate’s primary decision record dated 13 November 2018.
In relation to case no 2215116, [the third applicant] and [the fourth applicant] lodged an application for review of the delegate’s decision with the Tribunal on 14 October 2022 (the second case). They provided the Tribunal with a copy of the delegate’s primary decision record dated 19 September 2022.

The applicants appeared in-person before the Tribunal on 22 September 2023 to give evidence and present arguments. The parties to case no 1833723 and case no 2215116 are related. At the request of the applicants,[1] the Tribunal exercised its discretion to conduct the hearing as a combined hearing of the two related cases. The Tribunal is satisfied the applicants were given a fair opportunity to give evidence and present arguments.
[1] Email dated 24 August 2023; AAT file No 1833713 Doc ID:11448041
The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicants were represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in Attachment A to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in Attachment A to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and where applicable, country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse or de facto partner of the applicant and/or a child or stepchild of the applicant.[2]
[2] Migration Regulations 1994 (Cth), reg 1.12(2)

APPLICANTS’ CLAIMS AND EVIDENCE

The issue in this case is whether the applicants are persons 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 applicants protection visas should be remitted for reconsideration.

Applicants’ identities

The first applicant claims that he was born on [Date] in [City], Khuzestan, Iran and claims that he is a citizen of Iran. The first applicant provided the Department with a copy of his Iranian passport,[3] which confirmed the date and place of his birth.
[3] Application for protection, Dept file No: [1] Doc ID: 4961465 first applicant’s passport; Dept file No: [1] Doc ID: 4961465
The second applicant claims that she was born [Date] in [Town], Khuzestan, Iran[4] and provided the Department with a copy of her Iranian passport,[5] which confirmed the date and place of her birth.
[4] Application for protection, Dept file No: [1] Doc ID: 4961465; second applicant’s passport; Dept file No: [1] Doc ID: 4961465
[5] Application for protection, Dept file No: [1] Doc ID: 4961465 first applicant’s passport; Dept file No: [1] Doc ID: 4961465
The documents provided by the first and second applicants are consistent with their evidence to the Tribunal in relation to their identity. There is no evidence to suggest that either the first applicant or the second applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that the first and second applicants are citizens of Iran and as such their protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.
The third and fourth applicants claims they are the children of the first and second applicants. The third applicant claims he was born on [Date 1] in Australia. [6] The fourth applicant claims he was born on [Date 2] in Australia.[7] The third and fourth applicants both provided the Department with a copy of their birth certificates, each of which confirmed their date and place of birth and that the first and second applicants are their parents as claimed.
[6] Third applicant’s birth certificate. Dept file No [2] Doc ID 10347047
[7] Fourth applicant’s birth certificate. Dept file No [2] Doc ID 10347064
Therefore, based on the information provided by the applicants, the Tribunal finds that the third and fourth applicants are the children of the first and second applicants. Accordingly, the Tribunal finds that both the third and fourth applicants are citizens of Iran and as such their protection claims will be assessed against Iran as the country of reference and ‘receiving country’ respectively.

Migration history

The first applicant initially arrived in Australia in or about 2000 and applied for a protection visa on 26 November 2000. On 9 January 2001 the first applicant’s protection visa application was refused and in or about 2004, he voluntarily returned to Iran.[8]
[8] Protection visa decision record dated 13 November 2018. AAT file No 1833713 Doc ID:7893738
In or about December 2011, the first and second applicants arrived in Australia by boat. The first and second applicants lodged an application for protection on 19 February 2016.[9] A protection interview was conducted with the first and second applicants on 13 June 2018 and the delegate refused their application for protection on 13 November 2018.[10]
[9] Application for protection, Dept file No: [1] Doc ID: 4961452
[10] Ibid; [Organisation] letter dated 8 August 2018, Dept file No [1], Doc ID 4961465
The third and fourth applicants were born in Australia and made an application for protection on 27 July 2020,[11] which was refused by the delegate on 19 September 2022.[12]
[11] Third & fourth applicants’ protection visa application; Dept file No: [2] Doc ID: 10347047
[12] Protection visa decision record dated 19 September 2022, AAT file No: 2215116 Doc ID: 10333644
The applicants have remained in Australia since lodging their protection visa applications.

Applicant’s claims for protection

The applicant’s claims are detailed in the first applicant’s statements attached to both the first and second case. The delegate summarised the applicants claims as follows:[13]
[13] Protection visa decision record dated 13 November 2018. AAT file No 1833713 Doc ID:7893738
(a)In the first applicant’s statement dated 17 February 2016,[14] it is claimed that:
[14] Ibid; Statement of [the first applicant] dated 17 February 2016, Dept file No: [1] Doc ID: 4961452
·    He is an ethnic Arab and grew up in Ahwaz.
·        He first came to Australia in 2000. He helped [protestors] escape from the authorities.
·        The authorities closed his business and caused him other problems. He could not stay in Iran.
·        He returned to Iran in 2004. He continued to have problems because he helped the [protesters] escape.
·        He could not get a job or a passport. He decided to join the [Organisation 1] to improve his standing with the authorities.
·        He joined the [Organisation 1] in 2008 and got a job as [an occupation] with a company, [Company], affiliated with the [Organisation 2]. He [did a job task].
·        He soon became disillusioned with the [Organisation 1] and [Organisation 2]. He passed information, including evidence of the [Organisation 1]’s involvement in an explosion, and videos of torture by the [Organisation 1], to a newspaper.
·        A friend warned him the government had found out what he was doing and that he would be tortured and killed and urged him to flee. Another colleague helped him and his wife leave Iran before his name appeared on an airport watch list.
·        After he and his wife left the authorities searched his home. He had information and movies in his home that the authorities would object to. His home was sealed. His brother was arrested and questioned about the applicant. The brother later lost his job and also fled for Australia.
·        At the end of 2011 he converted to Zoroastrianism. He practised discreetly in Iran and the authorities do not know he has converted.
·        He fears he will be tortured and executed.
·        He will be suspected of being a spy because of his anti-government activities and because he sought asylum in Australia.
·        He fears being harmed for his political opinion (distributing videos), religion (Zoroastrianism), and his membership of the particular social groups:
(i)Transgressors of Islamic law;
(ii)Opponents of the [Organisations 1 and 2];
(iii)Defectors from the [Organisations 1 and 2];
(iv)Returnees from Western countries;
(v)Failed asylum seekers.
(b)In the first applicant’s statement dated 23 August 2018,[15] it is claimed that:
·    He is a board member of the [Organisation 3] and has been involved with the group for three years. The board organises events for the community.
·        He is involved with [Organisation 4], an international group that campaigns for regime change in Iran. If he returned to Iran he would continue to campaign for the removal of the current regime.
·        [In] January 2015 he took the former Pahlavi-era Iranian flag to [an Event] in Sydney. Images of him holding the flag were broadcast by [News source].
(c) In the first applicant’s statement dated 22 July 2020,[16] it is claimed that:
·        He has engaged in further activities and protests with [Organisations 3 and 4]. He has published information that is politically sensitive.
·        He fears his sons would also be in danger within Iran and would face persecution as members of the particular social group of his family and imputed political opinions in opposition to the current regime in Iran.
[15] Protection visa decision record dated 13 November 2018. AAT file No 1833713 Doc ID:7893738; Supplementary Statement of [the first applicant] dated 23 August 2018, Dept file No: [2] Doc ID: 4961452
[16] Protection visa decision record dated 13 November 2018. AAT file No 1833713 Doc ID:7893738; Statement of [the first applicant] dated 22 July 2020 CLD2020/26708839 - CID 43236599846 - SHEV application - 24.07.2020, p. 71.
The first applicant also claimed to the delegate[17] that he feared returning to Iran as a relative of his brother as he holds a protection visa in Australia. Finally, he claimed he feared returning to Iran as an ethnic Arab.
[17] Protection visa decision record dated 13 November 2018. AAT file No 1833713 Doc ID:7893738;
In addition, the delegate referred[18] to that the second applicant’s claim that, if she is returned to Iran, she will suffer serious psychological harm because her husband will be detained due to his prior difficulties in Iran and because of his religion as a Zoroastrian. The second applicant claims she will be imputed with the political opinion as a person related to persons wanted by the Iranian authorities, because her husband distributed videos against the Iranian government. She claims that she will be imputed with her husband’s political opinion and is a member of a particular social group as a failed asylum seeker returning from the West. She claims to be Arabic and fears harm for this reason.
[18] Protection visa decision record dated 13 November 2018; Dept file No [2] Doc ID: 10347072
Finally, the third and fourth applicants claimed that they feared returning to Iran due to the imputed political opinion of the first applicant and as a member of the same family unit as the first applicant.[19]

The first applicant’s evidence.

[19] Protection visa decision record dated 13 November 2018. AAT file No 1833713 Doc ID:7893738; Statement of [the first applicant] dated 22 July 2020 CLD2020/26708839 - CID 43236599846 - SHEV application - 24.07.2020, p. 71.

The first applicant’s evidence to the Tribunal was that he was on [Date] in [City], Khuzestan, Iran. He claims to be an ethnic Arab [Tribe] and that his religion is Zoroastrian. The first applicant claims that he can read, speak and write Farsi (Persian) and speak English.[20]
[20] Protection visa application 17 February 2016, Dept. file No [1] Doc ID:4961452
The first applicant’s father passed away about 18 years ago. His mother continues to live in Ahwaz, Iran. The first applicant’s father initially worked for [an employer] but later worked for a private [company] in the [work sector] and as an independent [contractor]. The first applicant has [brothers] ([in Australia and in Iran]) and [sisters] in Iran. All the applicant’s sisters are married and living in Ahwaz, Iran.
The first applicant moved with his family to Ahwaz, Iran when he was about [Age] years old because of his father’s work. The first applicant attended school in Ahwaz. After completing school, the first applicant initially commenced working with his father but later worked as [an occupation 1]. The first applicant then owned and operated [businesses] in Khuzestan, Iran.
The first and second applicants are married.

In or about 2000 the first applicant travelled to Australia by boat to seek protection. The applicant’s evidence was that he was working for a [company] and operating a [business].[21] His evidence was that during the 2000 elections there were demonstrations and protests in which some of his [people] from the [business] had participated. As a result, warrants for the arrest of the [people] were issued. The first applicant claims that he helped the [people] leave the country.[22] His evidence to the Tribunal was that he provided them assistance in dealing with the police. As a result, because he had assisted the [people], together with ‘other things,’ his office was closed. The first applicant claims he was not able to stay in Iran and he came to Australia.[23]
[21] Statement of [the first applicant] dated 17 February 2016, Dept file No: [1] Doc ID: 4961452
[22] Ibid
[23] Ibid
The Department refused the first applicant’s protection visa application and he returned to Iran in 2004. The first applicant’s evidence was that when he returned to Iran, because he had helped his [people], he was not able to obtain a passport and as a result was not able to find employment.[24] Therefore, to be considered more favourably by the government and to be allowed to work, he joined the [Organisation 1] in or about 2008.
First applicant as [an occupation]
[24] Ibid
The first applicant’s evidence was that upon joining the [Organisation 1], through a friend, he was able to secure a job with the Government as [an occupation doing a job task] for the [Company]. The first applicant’s evidence was that the company was under the control of [Organisations 1 and 2]. His evidence was that the [job task] was conducted by the [Organisation 1]. His evidence was that from time to time there were disputes between local villagers and company members which required [job task]. As a condition of his employment with the company, he was required to wear [a] uniform.
The first applicant’s evidence was that the [Organisations 1 and 2] were ‘not good people’ and ‘were responsible for incidents about which the public was not informed.’[25] The first applicant’s evidence was that in or about 2011, while he was working for the company, there was an explosion on the pipeline near Shush and Ahwaz. The applicant’s evidence was that despite the authorities blaming anti-revolutionary forces for the explosion, the [Organisation 1] was actually responsible for the explosion.[26] The first applicant was not able to say if the explosion was intentional or occurred accidentally.[27] Nevertheless, he claims he had video evidence of the [Organisation 1]’s involvement in the explosion which he provided to a friend, known to him as [Mr A], who worked as a reporter with [a] newspaper.[28] The first applicant’s evidence to the Tribunal was that he delivered the videos to [Mr A] personally in a street between his home and his work.
[25] Ibid
[26] Ibid
[27] Ibid
[28] Ibid
The first applicant claimed that a section of the [Organisation 1], known as [Section], took photos and videos of people being arrested and tortured by the [Organisation 1]. The first applicant’s evidence was that he had a friend in the [Organisation 1] who had access to the photos and videos. The first applicant’s evidence to the Tribunal was that he had been familiar with some of the incidents because in his role as [an Organisation 1] [occupation], he had been present at some of the incidents. The applicant’s friend gave him copies of the videos by USB and CD that he was able to download onto his home computer and/or directly onto his phone. The first applicant’s evidence to the Tribunal was that he wanted to help people understand what was happening.
The first applicant claimed that it was important for the Iranian government to keep such things secret. He claims that a few months after he started distributing the videos to the newspaper, a colleague told him that the Iranian Government had discovered that videos were being leaked to the press. He informed the first applicant that the authorities were searching for the person who had leaked the videos and told him that he should leave the country. If the authorities caught him, he would be tortured or killed.
The first applicant was not able to tell the Tribunal if [Mr A] was interrogated by the Iranian authorities and was not able to say what had happened to him. In addition, the first applicant was not able to say how the authorities were informed it was him who had distributed the videos to the press, except to say that he was not alone. However, the first applicant did not identify any other person who had distributed the videos with him.
The first applicant’s evidence was that he had many friends in the [Organisation 1]. As a result, he was able to contact someone to arrange for him to leave the country quickly. His evidence was that he needed to leave the country within 28 hours to avoid having his name being placed on a blacklist at the airport. The first applicant claims he contacted a person at the airport to confirm that his name had not been placed on the blacklist before he and the second applicant departed the country from the airport in Tehran.
The first applicant’s evidence was that he and the second applicant travelled from Iran to [Country 1] and then to [Country 2]. While in [Country 2] he claims to have contacted his family in Iran upon which he was informed by his mother that the authorities had raided his home. The first applicant was not able to say what was taken from his home by authorities, but he believes many documents were taken, including his laptop computer. The first applicant’s evidence was that the laptop computer had a copy of the explosion and copies of the videos he had provided to the newspaper. In addition, he claims there was a copy of the movie ‘Stoning of Surya’[29] (which was made in the United States) on the laptop. The applicant’s evidence was that if the authorities found these videos, he would be detained and harmed by the authorities, making him even more fearful of returning to Iran.[30] The applicant’s evidence was that his mother informed him that the authorities had sealed his home preventing anyone from entering. The first applicant claims that as a result, his mother moved to Ahwaz, Iran.[31]
[29] ‘Stoning of Surya’ is a 2009 Persian-language American drama film adapted from French-Iranian journalist Freidoune Sahebjam's 1990 book La Femme Lapidée
[30] Ibid
[31] Ibid
The first applicant’s evidence was that his brother was living in his home. When the authorities arrived at the house, his brother was arrested and questioned.[32] His brother travelled to Australia in 2012.
First applicant’s activities in Australia
[32] Ibid
The first applicant’s evidence was that since arriving in Australia, he and the second applicant have been involved with the [Organisation 3].[33] His evidence was that they have been involved in the [Organisation 3] because he and the second applicant wanted to preserve their culture and to maintain their own community in Australia.[34] The first applicant provided copies of photographs of him attending various [Organisation 3] meetings.
[33] First applicant’s supplementary statement dated 23 August 2018; Dept file No: [2] Doc ID: 4961452
[34] Ibid
The first applicant also claims that in or about 2017 he became involved in an organisation known in English as [Organisation 4].[35] The first applicant’s evidence was that the [Organisation 4] wants the people in Iran to be free and to replace the Islamic regime. It is a small but rapidly growing group that conducts conferences both overseas (in [Countries 3-5]) and interstate (Adelaide, South Australia).[36] The first applicant’s evidence was that through his involvement in the [Organisation 3] he was invited to attend a meeting of the [Organisation 4] [in] July 2018 in [Suburb], Melbourne. The first applicant provided a copy of a photo of him attending the meeting. The first applicant’s evidence was that there will be future meetings but he is yet to be informed of them. Nevertheless, he claims to be keen to remain involved in the group.[37]
[35] ‘Known in Persian as ‘[Organisation 4 in Persian]’; ibid
[36] Ibid
[37] Ibid
The first applicant’s evidence is that he is opposed to the Islamic regime and the Iranian government. His evidence is that in Australia he has expressed his political opinion on an ad hoc basis. [In] January 2015 he took the old Iranian flag (the flag of Shah) to [the Event] held in Sydney. The first applicant’s evidence was that despite it being dangerous for him, he wanted to express his political opinion in opposition to the Irian regime.[38] The first applicant has been informed by friends and family in Iran that a photo of him with the flag at the game was broadcast by [News source].[39]
[38] Ibid
[39] Ibid
In addition, the first applicant has been involved in political protests in Australia. In or about 2016, he participated in a protest outside the front of [Building 1]. His evidence to the Tribunal was that he has actively been involved in protests against the Iranian regime since 2018. The first applicant claims he has made over 500 posts on his [Social media 1] page protesting against the Iranian regime.
First applicant’s religion
The first applicant’s evidence is that in or about 2011 he converted from Islam to Zoroastrianism.[40] His evidence was that he had been thinking about different religions for some time and decided that Zoroastrianism was the one he would like to practise.[41] His evidence is that despite having converted to Zoroastrianism, he was not able to openly practise the religion in Iran. He claimed that to do so would be death.[42]
[40] Statement of [the first applicant] dated 17 February 2016, Dept file No: [1] Doc ID: 4961452
[41] Ibid
[42] Ibid
The first applicant claimed that are three pillars to the religion of Zoroastrianism - good thoughts, good words and good deeds.[43] The first applicant’s evidence was that despite being unable to openly express his religion he tried to adhere to these testaments in his life. The first applicant’s evidence to the Tribunal was that he hated Islam and, in his heart, had become a Zoroastrian. The first applicant was not able to provide the Tribunal with any evidence of study or formal conversion to the religion. His evidence was only that he had adopted Zoroastrianism ‘in his heart.’ Nevertheless, his evidence was that he practised Zoroastrianism in Australia[44] and as such would be harmed if he was returned to Iran.

The second applicant’s evidence

[43] Ibid

[44] Ibid

The second applicant was born on [Date] in [Town], Iran. Her father passed away when she was 12 years old and her mother passed away about six months prior to the hearing. She has [brothers] (one passed away due to COVID-19) and [sisters]. All continue to live in Iran.
The second applicant’s family moved to Ahwaz when she was a young child. As a result, she attended school in Ahwaz. After school she enrolled in [a subject] course at [University], but only attended one semester due to the cost of attending the university. As a result, she commenced work for [a] company where she was employed for approximately 18 years.
Consistent with her protection claims, the second applicant’s evidence was that she feared returning to Iranian because she would be imputed with the political opinion of the first applicant (her husband) by reason of his activities in Iran, his protests in Australia and as a failed asylum seeker if she was returned to Iran. In addition, she claimed that she will be imputed with his religious beliefs as a Zoroastrian.
The first and second applicants both noted that the third and fourth applicants (their sons) were born in Australia and have lived in Australia all their lives. They claimed that their sons would suffer discrimination if they were forced to return to Iran. They would be treated as outsiders and have difficulty adjusting to the culture in Iran. In addition, their evidence was that both the third and fourth applicants suffer from severe [medical condition]. They claimed that the medical facilities in Iran are inadequate and as a result they would suffer harm because of their medical condition if they returned to Iran.

The applicants’ documents.

The applicants provided the following documents:[45]
[45] Dept file No [2]. Doc ID 10347047
(a)Copies of their birth certificates.
(b)Statement made by the first applicant dated 23 August 2018 including:
(i) Photographs of meeting of the [Organisation 4] dated [July] 2018, attended by the first applicant.
(ii) Photographs of the first applicant at [an Organisation 3] event.
(c)Statement made by the first applicant, dated 22 July 2020, accompanied by photographs of the first applicant at recent political events.
(d)Statement made by the first applicant, dated 17 February 2016.
(e)Copy of the Department of Home Affairs’ notification letter and decision record dated 19 September 2022.[46]
[46] AAT file 2215116. Doc ID 10333643 and 10333644
(f)First applicant’s statutory declaration, sworn on 12 September 2023.[47]
[47] AAT file 2215116. Doc ID 11524280
(g)Representative’s legal submission dated 15 September 2023.[48]
[48] Ibid
(h)Representative’s post-interview submission dated 8 August 2018.[49]
[49] Ibid
(i)Evidence of attendance at a protest – [Social media 2] posts shared by the first applicant.[50]
[50] Ibid
(j)Sample [Social media 2] posts made by the first applicant.[51]
[51] Ibid
(k)Letter issued by [Dr B] of [Fertility Centre] in relation to fertility treatments undertaken by the first and second applicants, dated 8 September 2023.[52]
[52] Ibid
(l)Paediatrician letters (x2) issued by [Dr C] of [Specialists Group] in relation to the applicants, dated 8 September 2023.[53]
(m)Letter issued by [Dr D] of [Doctors] in relation to the second applicant, dated 30 August 2023.[54]
(n)Letter issued by [Dr E] of [Medical Centre] in relation to the second applicant, dated 14 September 2023.[55]
(o)Certificate issued to the first applicant by the [Organisation 3].[56]
(p)Invitation issued to the first applicant from [Organisation 4][57]
(q)[School year] 2024 enrolment for the third applicant.[58]
(r)Country information – Article titled “Iran Rights Group Says Number of Activists' Arrests Piles Up”, dated 22 August 2023.[59]
(s)Country information – Human Rights Watch article titled “Iranian Society under Crackdown.”[60]
(t)Department of Health and Aged Care webpage, “Development milestones - your child at 4 years.”[61]
(u)Photographs as evidence of the first applicant’s participation in a protest in front of [Building 2] in Melbourne [in] September 2023.[62]
[53] Ibid
[54] Ibid
[55] Ibid
[56] Ibid
[57] Ibid
[58] Ibid
[59] Ibid
[60] Ibid
[61] Ibid
[62] AAT file 2215116. Doc ID 11524973

COUNTRY INFORMATION

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 DFAT. The Tribunal has referred to the DFAT Country Information Report on Iran dated 14 April 2020. In addition, it has referred to the latest Country Information Report on Iran of 24 July 2023 (the DFAT Report),[63] in particular, those parts of the DFAT Report marked as Attachment B to this decision.
[63] DFAT Report

CONSIDERATION OF CLAIMS AND FINDINGS

The issue in this case is whether the applicants are persons to whom Australia owes protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter be remitted for reconsideration.

Credibility

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.
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, the fact 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 the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[64]
[64] Section 5AAA of the Migration Act 1958 (Cth) (the Act); MIEA v Guo (1997) 191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169–70]
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[65] Care must be taken not to exclude from consideration the totality of some evidence, where a portion of it could reasonably have been accepted.
[65] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482]
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[66] 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.

Accepted facts.

[66] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]

Based on the applicants’ evidence, the Tribunal accepts and finds that:
(a)the first applicant was born on [Date] in [City], Khuzestan, Iran.
(b)the second applicant was born [Date] in [Town], Khuzestan, Iran.
(c)the first and second applicants are married.
(d)the third applicant was born on [Date 1] in Australia.
(e)the fourth applicant was born on [Date 2] in Australia.
(f)the third and fourth applicants are children of the first and second applicant.
(g)the first applicant’s father has passed away and his mother continues to live in Ahwaz, Iran.
(h)the first applicant has [brothers] and [sisters]. [Number] brothers live in Australia with the remainder of his siblings continuing to live in Iran.
(i)the first applicant attended school in Ahwaz.
(j)the second applicant’s mother and father have both passed away.
(k)the second applicant had [brothers] (one passed away due to COVID-19) and [sisters], who continue to live in Iran.
(l)the second applicant attended school in Ahwaz and completed one semester of [a subject] course at university.
(m)the second applicant was employed by [a] company for approximately 18 years.

Member of the same family unit

The first and second applicants’ claims that they are married and are the of the third and fourth applicants. Sections 36(2)(b) and (c) provide that a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse or de facto partner of the applicant and/or a child or stepchild of the applicant, and a relative of the family head who is usually resident in the family head’s household and dependent on the family head.[67]
[67] Migration Regulations 1994 (Cth), reg 1.12(4)
In this case, the Tribunal has accepted and found that the first and second applicants are married and that they are the parents of the third and fourth applicants. All the applicants reside at the same address. Pursuant to reg 1.05A, a person is dependent on another for the purposes of a protection visa application if they are wholly or substantially reliant on the other person for financial, psychological or physical support. In this case the third and fourth applicants are young children and are reliant on the first and second applicants. Accordingly, the Tribunal accepts that the applicants are members of the same family unit.

Refugee

A past fear of persecution is not sufficient

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 an applicant is outside his/her 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 they are unable or unwilling, due to the present and well-founded fear, to avail themselves of the protection of that country.[68]
[68] 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
Findings in relation to past events can provide a rational basis from which to assess whether an applicant’s fear of persecution for a reason under s 5J(1)(a) of the Act is well-founded.[69] 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.[70] In addition, the likelihood of such events occurring in the future will also depend on the introduction of any relevant new or other relevant event.[71]

Applicant’s relevant grounds

[69] MIEA v Guo (1997) 191 CLR 559 at 574

[70] MIEA v Guo (1997) 191 CLR 559 at 574–5

[71] Ibid

The first applicant submits that there is a real chance he will be seriously harmed if he is returned to Iran within the scope of s 5J(1)(a) of the Act because of:
(a)his political opinion.
(b)his religion as a convert to Zoroastrianism.
(c)his membership of a particular social group, being:
(i)       transgressors of Islamic law.
(ii)     opponents of the [Organisations 1 and 2].
(iii)    defectors from the [Organisations 1 and 2].
(iv)    returnees from Western countries.
(v)     failed asylum seekers.

First applicant’s political opinion

The first applicant claims that there is a real chance he will be seriously harmed if he is returned to Iran because of his political opinion, in accordance with s 5J(1)(a) of the Act. A political opinion, for the purposes of s 5J(1)(a) of the Act, 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.[72] In Saliba v MIMA, the Court, when considering the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention) 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.[73]
[72] MIEA v Guo (1997) 191 CLR 559 at [571] referring to Chan v MIEA (1989) 169 CLR 379 at [416], [433]
[73] Saliba v MIMA (1998) 89 FCR 38 at [49]
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (the UNHCR Handbook) provides[74] 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. In such circumstances, it may be reasonable to assume that an applicant’s opinion will, sooner or later, come into conflict with the authorities. If this is the case, an applicant may be considered to have a well-found fear of persecution because of their political opinion.
[74] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [80]–[86]; Chan v MIEA (1989) 169 CLR 379 at [392]
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’.[75] 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.’[76]
[75] MIMA v Y [1998] FCA 515 at [4] and [5]
[76] Ibid
In C v MIMA[77], Wilcox J found that the term ‘political opinion’ was broader than adherence to a political party or support for its policies.[78] 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.[79]
[77]   C v MIMA (1999) 94 FCR 366
[78]   C v MIMA (1999) 94 FCR 366 at [375]
[79]   C v MIMA (1999) 94 FCR 366 at [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 at [26]
In this case, the first applicant claims that, in accordance with s 5(1)(a) of the Act, he holds a political opinion that is opposed to the Iranian regime. He claims that his political opinion has been demonstrated in the past by him leaking video footage of an explosion and other activities of [Organisation 1] to a newspaper, his membership of [Organisations 3 and 4] in Australia and his public display of the Shah flag at [the Event]. Based on the first applicant’s evidence, the Tribunal accepts that the first applicant’s claim falls within the scope of s 5(1)(a) of the Act by reason of his political opinion.

First applicant’s religion.

The first applicant claims to have a well-founded fear of persecution within the scope of s 5(1)(a) of the Act because of his religion as a member of the Zoroastrian faith.
The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy,[80] 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.
[80] [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) at [19]–[22])
The UNHCR Handbook provides an overview of the scope of ‘religion’[81] 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.
72 Persecution 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.
73 Mere 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.
[81]   UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73], <>
The question of whether an applicant has a well-founded fear of being persecuted because of their religion can 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.[82] 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.[83] 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.[84]
[82]    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: WZAOO v MIAC (2012) 134 ALD 332 at [12], citing W161/01A v MIMA [2002] FCA 285
[83]      See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion
[84]      Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)
In this case, the first applicant claims that he has rejected Islam and converted to the Zoroastrian faith. The first applicant claims that there is a real chance he will be seriously harmed if he is returned to Iran as an apostate, having rejected Islam and become a member of the Zoroastrian faith. The Tribunal accepts that the first applicant’s claim based on his faith does fall within the scope of s 5(1)(a) of the Act.

First applicant as a member of a particular social group

In addition, the first applicant submits that his claims fall within s 5J(1)(a) of the Act as a member of a particular social group (PSG) as a person who has transgressed Islamic Law, as an opponent of the [Organisations 1 and 2], as a defector from [Organisations 1 and 2], as a returnee from a Western country and as a failed asylum seeker. Section 5L of the Act defines a member of a PSG as follows:
Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply
(i) the characteristic is an innate or immutable characteristic.
(ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it.
(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

To be considered a member of a PSG, it is necessary for the applicant to share (or be perceived as sharing) an innate or immutable characteristic with each member of the group, or that the characteristic be fundamental to a member’s identity or conscience or distinguish the group apart from society.[85] In this case, while the Tribunal has some reservations that being a failed asylum seeker or a returnee from a Western country represents an innate or immutable characteristic so fundamental to the applicant’s identity or consciousness that it would identify them as part of a group and distinguish the group from society as required under the Act. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that the first applicant is a member of a PSG as claimed.

Second applicant’s imputed political opinion.

[85] Section 5L of the Act

The second applicant claims that there is a real chance she will be seriously harmed if she is returned to Iran because of her imputed political opinion in accordance with s 5J(1)(a) of the Act. As referred to above, a political opinion, for the purposes of s 5J(1)(a) of the Act, need not be an opinion that is held by the refugee, but can be imputed to the applicant by the persecutor.
In this case the second applicant claims that she will be imputed with the political opinion of the first applicant as the spouse of a person wanted by the Iranian authorities, due to him distributing videos against the Iranian government. The Tribunal accepts that the second applicant will be imputed with the political opinion of being opposed to the Iranian regime due to the first applicant being wanted by the Iranian authorities. As such, the Tribunal accepts that her claim falls within s 5J(1)(a) of the Act.

Second applicant as an ethnic Ahwazi Arab

The second applicant submits that her claims fall within the scope of s 5J(1)(a) of the Act based on her race as an Ahwazi Arab. The Tribunal is obliged to apply the applicant’s claim in relation to her ethnicity in the ‘widest sense.’[86] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides a guide as to race as a well-founded fear of persecution.[87] It states:[88]
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.
…
70.The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim for refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will itself be sufficient ground to fear persecution.
[86]    Calado v MIMA (1998) 81 FCR 450 at 455
[87]    Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ
[88]    UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paras 68-70
In this case, based on the applicant’s evidence, the Tribunal accepts that she is an ethnic Ahwazi Arab. Accordingly, it accepts that her claim falls within the scope of s 5J(1)(a) of the Act by reason of her race.

Second applicant as a member of a PSG

Further, the second applicant claims that there is a real chance she will be seriously harmed if she is returned to Iran as a member of a PSG in accordance with s 5J(1)(a) of the Act as result of her being a failed asylum seeker and a person returning from a Western country. Based on the Tribunal’s finding in relation to the first applicant, the Tribunal accepts and finds that the second applicant is a member of a PSG for the purposes of s 5J(1)(a) of the Act as claimed.
However, the Tribunal notes that it was also open to the second applicant to claim that as a female being returned to Iran, she is a member of a PSG. In MIMA v Khawar (2002) 210 CLR 1[89] (the Khawar case) the High Court, when considering the Refugees’ Convention, found that it would be open for the Tribunal to declare that 'women in Pakistan' meets the description of a PSG. On the issue of such a large group, His Honour Chief Justice Gleeson stated that:[90]
The size of the group does not necessarily stand in the way ... There are instances where the victims of persecution in a country have been a majority. It is power, not number, that creates the conditions in which persecution may occur.
[89] MIMA v Khawar (2002) 210 CLR 1
[90] MIMA v Khawar (2002) 210 CLR 1 at [33]

Therefore, based on the Khawar case, the Tribunal accepts and finds that the second applicant is a member of a PSG because of being a female from Iran.

The applicants’ well-founded fear

Section 5J of the Act states that for the purposes of application under the Act, a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
In Chan v MIEA[91] the Court 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.[92]
[91] (1989) 169 CLR 379 at 396
[92] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ
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:[93]
“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.
[93] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397
In MIEA v Guo, the Court stated that: [94]
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.
[94] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
In this case, the first applicant claims that, if he is returned to Iran, there is a real chance he will suffer serious harm from authorities because of his political opinion, his religion and as a member of a PSG as a failed asylum seeker. For the reasons detailed below, the Tribunal has not accepted that the first applicant has a well-founded fear of persecution if he is returned to Iran for the reasons expressed below in this decision.

However, the second applicant claims that, if she is returned to Iran, there is a real chance she will suffer serious harm from authorities because of her ethnicity and as a member of a PSG as female returning to Iran. For the reasons detailed below, the Tribunal has accepted that the second applicant has a well-founded fear of persecution if she is returned to Iran for the reasons expressed below in this decision.

First applicant as a member of the [Organisation 1]

The first applicant claims that there is a real chance he will be seriously harmed if he is returned to Iran because he leaked videos of people being arrested and tortured by the [Organisation 1] to a local newspaper in Iran. The first applicant’s evidence in relation to his employment with the [Organisation 1] and him supplying information in relation to the Basij’s actions to the newspaper was vague and lacking in detail.
The first applicant’s evidence was that after he returned to Iran, he joined the Basij for the purposes of being able to find employment. He claims that through a friend he was able to secure a job as [an occupation] [doing a job task] near Shush and Ahwaz for [Company]. The first applicant’s evidence was that [Company] was affiliated with the [Organisations 1 and 2]. His evidence was that he was employed by [Company], but under the supervision of the [Organisation 1]. The country information reports[95] that [Company] is a company in Iran that is affiliated with the [Organisation 1] and the [Organisations 1 and 2 jointly]. Based on the first applicant’s evidence and the available country information in relation to [Company], the Tribunal accepts that the first applicant worked as [an occupation] for [Company] [doing a job task] near Shush and Ahwaz as claimed.
[95] [News source, title, date, URL]
The first applicant’s evidence was that while he was working for [Company] there was an explosion on the pipeline close to Shush and Ahwaz that the authorities attributed to anti-revolutionary forces. A report dated 7 August 2011[96] confirmed that an explosion occurred on a pipeline in the Khuzestan Province in Iran’s southwest. The report stated that it was not clear if the incident occurred due to technical problems or a terrorist attack.[97] It stated that the incident would not affect the production of oil from the southern region of the country and confirmed that pipeline blasts occur in Iran from time to time.[98] On 24 October 2012, it was reported[99] that a further pipeline explosion occurred close to Shush. The reason for this explosion was not known. Recently, several sabotage explosions at various points along Iran’s national gas pipeline network have been reported.[100] Iran’s minister for oil, Javid Owji, stated that such attacks are rare in Iran but noted that similar attacks did occur in 2011 and 2017.[101] Therefore, based on the first applicant’s evidence and the available country information, the Tribunal accepts that an explosion on the pipeline did occur close to Shush and Ahwaz as claimed.
[96] Oil & Gas, ‘Iranian oil pipeline unaffected by blast’ 7 August 2011 by Patrick Osgood; Ibid
[98] Ibid
[99] Trend News Agency, ‘Gas pipeline explodes in Iran’ 24 October 2012, Iran International ‘Iran’s Gas Pipeline Network Hit by ‘Sabotage Blasts.’ 14 February 2024, Reuters ‘Iran’s main gas pipeline hit by sabotage oil minister says.’ 15 February 2024; Reuters ‘Iran’s main gas pipeline hit by sabotage oil minister says.’ 15 February 2024; >
However, except to say that the explosion occurred close to Shush and Ahwaz, the first applicant did not give any evidence of where and when the explosion occurred. He gave no evidence of the damage caused by the explosion and or the number of casualties it may have caused. The first applicant’s evidence was that he was unable to say if the explosion was intentional or an accident.
The applicant’s evidence was that he had information that the [Organisation 1] had been involved in the incident but did not provide any evidence of the [Organisation 1]’s involvement or how he came to know of the [Organisation 1]’s involvement in the explosion as claimed. In addition, the first applicant did not provide the Tribunal with any documentary evidence indicating that the [Organisation1] had been involved in the explosion as claimed. The first applicant claimed that he provided the information to a reporter known as [Mr A]. However, despite his evidence that he gave the information to [Mr A] in a street between his home and his work, the first applicant was not able to provide any details of where and when he supplied the information to [Mr A] as claimed. The first applicant did not provide the Tribunal with a copy of any relevant news articles evidencing that he had passed information onto [Mr A] as claimed.
Based on the vague nature of the first applicant’s evidence, in particular the first applicant’s lack of detail concerning the [Organisation 1]’s involvement in the explosion and his inability to provide specific details as to where and when he provided the information to [Mr A] as claimed, the Tribunal does not accept that the first applicant had any information evidencing the [Organisation 1]’s involvement in the explosion as claimed or that he passed such information onto [Mr A] as claimed.
The first applicant’s evidence was that he also provided photos and videos of people being arrested and tortured by the [Organisation 1]. His evidence was that he obtained photos and videos through a friend in the [Organisation 1] who had access to them. The first applicant did not name his friend and did not provide any evidence as to how his friend had access to the videos and photos as claimed. The first applicant’s evidence was that his friend provided the videos by USB and CD, which he then downloaded onto his home computer and/or directly onto his phone and sent to the newspaper. The first applicant did not provide any documents to indicate that he had provided the newspaper with the photos and videos as claimed. He did not produce any copies of newspaper articles relevant to the information he had provided and did not detail any specific events or incidents relevant to the photos or videos he claims to have supplied the newspaper. In circumstances where the first applicant’s evidence was that he was familiar with some of the events recorded in the photos and videos, the Tribunal expected the first applicant to provide specific details of such events and incidents. Instead, the first applicant’s evidence in relation to the events and incidents recorded was vague and lacking in any detail. Therefore, based on the first applicant’s evidence, the Tribunal does not accept that he had a friend in the Basij who provided photos and videos as claimed. Accordingly, the Tribunal does not accept that he provided any such photos and videos to the newspaper as claimed.
The first applicant’s evidence was that after a few months of distributing the photos and videos to the newspaper, a colleague told him that the Iranian Government had discovered that the videos were being leaked to the press and they were searching for the person responsible. The first applicant’s evidence in relation to how he was informed that the government were searching for him was vague and lacking in any detail. The first applicant did not identify the person or provide any information as to how that person knew the government was aware that the photos were being leaked to the newspaper. The first applicant was not able to say how the authorities were informed that he was distributing the materials to the newspaper, except to say that he was not the only one. However, the first applicant did not identify any other person who had distributed the videos with the first applicant.
Finally, the first applicant claims that he was informed by his mother that his home was searched by the authorities after he had departed Iran. The first applicant was not able to say what was taken from his home by the authorities. He believes many documents were taken, including his laptop computer, upon which he had stored the photos and videos he had passed onto the newspaper. The first applicant did not explain to the Tribunal why, in circumstances where his evidence was that the authorities were searching for him and the offending material, he would leave his laptop at his home without deleing the offending material including the photos and videos supplied to the newspaper. The first applicant did not provide any supporting evidence that the authorities had raided his home as claimed. The first applicant did not provide the Tribunal with a witness statement from his mother. In addition, the first applicant did not provide any evidence from his brother about the raid, despite his bother being at his home at the time of the raid and now living in Australia. Therefore, based on the first applicant’s own evidence, the Tribunal does not accept that his house was raided and searched by the authorities as claimed.

100.Therefore, based on the first applicant’s own evidence, the Tribunal does not accept that he leaked photos and videos to the newspaper or that the authorities searched his home as claimed. As such, the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Iran because of having provided photos, videos, and other information to the [newspaper] as claimed.[102]
[102] Ibid
First applicant as a Zoroastrian

The first applicant’s evidence claims that in or about 2011 he converted from Islam to Zoroastrianism.[103] His evidence was that he had been thinking about different religions for some time and decided that Zoroastrianism was the one he would like to practise.[104] His evidence was that despite having converted to Zoroastrianism, he was not able to openly practise the religion in Iran. He claimed that to do so would be death.[105] The first applicant’s claim is that having rejected Islam and converted to Zoroastrianism he will be seriously harmed if he is returned to Iran.
Statement of [the first applicant] dated 17 February 2016, Dept file No: [1] Doc ID: 4961452
[104] Ibid
[105] Ibid
Zoroastrianism is one of the oldest religions in the world with possible roots back to the second millennium BC. It was the official religion in ancient Iran from around 600 BC to 650CE.[106] The religion is based on the teachings of the Avesta (the primary collection of religious texts of Zoroastrianism, written in the Avestan language)[107] and the Iranian prophet Zoroaster. Its holds a belief in a benevolent deity or God known as Ahura Mazda and a destructive spirit known as Angra Mainyu and has dualistic cosmology by which good will ultimately triumph over evil.
[106] Ibid; DFAT Report at p.21
[107] Boyce, Mary (1984), Textual Sources for the Study of Zoroastrianism, Manchester UP.
The first applicant’s evidence was that in or about 2011 he converted to Zoroastrianism. The first applicant’s evidence to the Tribunal was that he did not attend any classes or ceremonies for the purposes of converting from Islam to Zoroastrianism but rather merely adopted the religion ‘from his heart.’ The first applicant did not give any evidence of having suffered persecution or serious harm while in Iran because of having converted to Zoroastrianism as claimed.
The country information reports[108] that traditionally the religion has been based strictly on ethnicity. That is, a person must be born into the faith. It is not possible to enter the faith from outside. Traditionally, to be a Zoroastrian a person must be born to two Zoroastrian parents. Mixed marriages are frowned upon, and partners cannot convert to the religion.[109] However, a child with a Zoroastrian father and a non-Zoroastrian mother is sometimes given admission into the faith. Children of Zoroastrian mothers and non-Zoroastrian fathers cannot be members of the religion.[110]
[108] The Circle of Ancient Iranian Studies (CAIS),’Ancient Iranian religions, Conversion to Zoroastrianism’ by Hannah Michal Gale Shapero; SBA News ‘The rare marriage of two Aussie Zoroastirains’, 27 May 2013, Ibid

105.However, its reported[111] that modern Zoroastrians disagree on whether it is permissible for outsiders to enter their religion. Today Zoroastrians exist in small minority communities throughout the Middle East, India, Europe, and North America who are governed by their own local councils and high priests. It does not have a religious hierarchy.[112] It is reported that even within each community a person may choose not to accept the ruling of the council or high priest. As a result, it is reported[113] that Zoroastrian communities and individuals have differing views on conversion. It is reported[114] that there are two broad views (although even within each group there is considerable difference of opinion), being the reformists, those who urge acceptance of any person who freely chooses to practise Zoroastrianism, and the traditionalists, who refuse to accept those who have married outside the faith and consider children born of such unions illegitimate.[115]
[111] Encyclopedia Iranica; ‘Conversion vii. To the Zoroastrian faith in the modern period’, 15 December 1993; Ibid
[113] Ibid
[114] Ibid
[115] Ibid
106.The country information[116] reports that Zoroastrians do face official discrimination because Iran’s laws are based on Shia Islam. As a result, Zoroastrians are disqualified from holding senior government, military, intelligence, and judicial positions. Nevertheless, DFAT assesses[117] that so long as Zoroastrians do not seek to convert others, they are able to practise their faith freely and face a low risk of discrimination on religious grounds.
[116] DFAT Report at p.22
[117] Ibid
107.The first applicant’s evidence to the Tribunal was that despite being unable to openly practice Zoroastrianism, he was committed to living his life according to the religion’s three pillars - good thoughts, good words, and good deeds.[118] However, the first applicant was not able to provide the Tribunal with any evidence of study or formal conversion to the religion. Other than stating the religion’s three pillars, the first applicant was not able to demonstrate to the Tribunal that he had any further understanding of the Zoroastrian faith and beliefs. His only evidence of him having become a Zoroastrianism was that he had adopted the faith ‘in his heart.’ Despite claiming that he has practised Zoroastrianism in Australia,[119] the first applicant did not provide any evidence of having attended religious gatherings or being involved in the faith while in Australia.
[118] Ibid
[119] Ibid
108.Based on the first applicant’s evidence and the available country information, the Tribunal finds that the first applicant has not converted from Islam to Zoroastrianism as claimed. Accordingly, the Tribunal finds that there is no real chance that he will be seriously harmed if he is returned to Iran by reason of his religion.

First applicant as a failed asylum seeker

109.The first applicant claims that since his arrival in Australia he has been involved in [Organisations 3 and 4][120] to preserve his culture and community in Australia and to oppose the Islamic regime in Iran.[121] The first applicant claimed to be a member of each organisation. There was no evidence to suggest that the first applicant has been a board member or an official of either [Organisation 3 or 4]. The first applicant provided photos of him attending [an Organisation 3] meeting and a meeting of [Organisation 4]. Based on the first applicant’s evidence, the Tribunal accepts that the first applicant is a member of [Organisations 3 and 4] as claimed.
[120] First applicant’s supplementary statement dated 23 August 2018; Dept file No [2] Doc ID:4961452
[121] Ibid
110.The first applicant claims that he has expressed his opposition to the Islamic regime and the Iranian government on an ad hoc basis, which has included him displaying the flag of Shah at [the Event] held in Sydney [in] January 2015 and attending protest rallies against the Iranian regime since 2018. In addition, he claims he has made over 500 posts on his [Social media 1] page protesting the Iranian regime.
111.The country information reports[122] that the authorities in Iran monitor online content, including social media. Those people repeatedly posting content on social media (including those overseas) that are openly critical of the government or deemed to be in breach of moral boundaries may attract attention, particularly if the content goes viral.[123] DFAT reports that Iranian citizens who have links with Iran based foreigners are more likely to have their social media accounts monitored. However, it is reported that given the high volume of social media interaction, it’s unlikely that every social media user in Iran has their social media accounts monitored.[124] Those with a public profile or who are politically active and post regularly about politically sensitive issues are more likely to be monitored.[125] DAFT assesses that journalists, both in print and online, who report on protests, sensitive topics and criticise the government face a moderate risk of arrest.[126]
[122] DFAT Report at p.27
[123] Ibid
[124] DFAT Report at p.28
[125] Ibid
[126] Ibid
112.The country information reports that the authorities pay little attention to failed asylum seekers on their return to Iran. Their actions, including social media posts about sur place activities, are not routinely investigated by the Iranian authorities. In this case, the first applicant’s evidence was that he was active on social media protesting the Iranian regime and he had been regularly involved in protest rallies against the Iranian regime since 2018. The first applicant did not provide any detail of such protests, including the number of people who attended the protests, their location, and the specific issue that each protest concerned. The first applicant’s evidence was that he did not organise or promote the rallies. He merely attended them as a participant.
113.The Tribunal accepts that the first applicant participated in the protest rallies against the Iranian regime on an ad hoc basis as claimed. However, based on the first applicant’s own evidence and the documents provided to the Tribunal, the Tribunal finds that the first applicant does not hold a public profile to the extent that his social media posts, membership of [Organisations 3 and 4] and his attendance at various protest rallies against the Iranian regime would come to the attention of the Iranian authorities. Finally, the Tribunal accepts that the first applicant displayed the Shah flag at [the Event] as claimed. The first applicant’s evidence was that his family in Iran told him that a photo of him holding the flag was broadcast by [News source].[127] However, the first applicant did not provide any details of the broadcast, or any evidence of the broadcast as claimed. In any event, the Tribunal notes that [the Event] was more than nine years ago. In such circumstances, given the passage of time, the Tribunal does not accept that his actions will be brought to the attention of the Iranian authorities to the extent that he would be seriously harmed upon his return.

1.16 While there are no official figures, as at 10 January 2023, reliable sources indicated around 20,000 people had been arrested since the protests began. Many have been released either without charge, or pending court hearings. DFAT is aware of harsh sentences being handed to many protesters, including long jail sentences. As at 19 December 2022, DFAT understood 400 protesters had been sentenced to jail, 160 of whom were sentenced to between five and 10 years in prison, 80 sentenced to two to five years, and 160 people to up to two years. Trials have occurred quickly without due process and in secret. DFAT has been told that many of those prosecuted have either had no legal representation or ineffective court-appointed lawyers. As at the time of publication, the government’s harsh response had significantly curtailed, but not stopped, protest activity. Social media activity reflects ongoing anger against the regime. These are the biggest and longest-running protests in the history of the Islamic Republic. They differ from previous protests in their overt call for social change and the overthrow of the regime.

Protests prior to September 2022

1.17 In late December 2017, a small protest in Mashhad (Razavi Khorasan Province) rapidly escalated and by 2018 had spread to more than 50 other cities and towns across Iran, involving an estimated 40,000 protesters. The protests spanned ethnic and religious lines and focused on economic hardship with anti-government and anti-regime themes. Many protesters conducted themselves peacefully, however there were reports of violence. According to Human Rights Watch, 4,900 people were arrested during the protests, and at least 21 people were killed, including members of the security forces. A large number of protesters (DFAT is not aware of how many) were released soon after arrest however DFAT understands some were given long prison sentences. DFAT is not aware of continued arrests in relation to these specific protests, however assesses that leaders of the protests who have not yet been arrested, if any, could still face arrest.

1.18 Further protests occurred in November 2019 after petrol subsidies were reduced. According to international media reporting, the protests spread to dozens of cities and towns across Iran and about 1,500 people were killed. According to then-UN High Commissioner for Human Rights, Michelle Bachelet, 7,000 people were arrested. As with the 2017 protest, DFAT understands most people arrested were subsequently released.

1.19 Protests again occurred in January 2020 after Iran admitted it had mistakenly shot down a Ukrainian civilian airliner. The plane crashed with 176 people on board, most of whom were Iranian and all of whom died. Protesters demanded the resignation of the Supreme Leader over the incident and subsequent cover-up. Online footage appeared to show security forces using tear gas, rubber bullets and live ammunition to disperse protesters in Tehran. Dozens of arrests were reported. DFAT is not aware of ongoing arrests.

1.20 Smaller protests continued to occur in 2021 and 2022. Most such protests (prior to those in response to Mahsa Amini’s death) were in response to water and electricity shortages, cost of living pressures and rampant inflation. At times, authorities tolerated the protests, however on other occasions they have violently supressed protest activity. These protests began in Khuzestan (see Arabs) in July 2021 and have continued for many months. New protests can occur at any time over different issues and may be seen as a continuation of existing protests. For example, mass anti-government protests occurred in May 2022 in Khuzestan after a building collapsed, killing dozens. The situation is volatile, and arrests and fatalities are possible. Most protests comprise several hundred people. Independent sources of information are not always available and what does exist is difficult to verify.

1.21 DFAT assesses that economic hardship was the primary driver of most protests from 2017 to 2022. In the current climate, DFAT assesses that ordinary protesters face a moderate risk of arrest and official violence but a low risk of on-going official harassment and discrimination.

‘Green Movement’ Activists

1.22 Iranian authorities cracked down on the protest movement known as the Green Movement in 2009 to 2010. The protests were about the election of Mahmoud Ahmadinejad as President. The movement was violently suppressed by authorities. Some high-profile participants went into exile and continued to promote anti-regime political views, but the movement did not last beyond 2010.

1.23 The Green Movement has little or no profile in Iran today. Neither the movement nor its supporter base played a significant role in the 2017-2022 protests, even if the tactics, demands and government responses may be similar. Local sources told DFAT ordinary participants in the Green Movement are not of interest to the authorities. There have been extensive protests since the Green Movement and authorities are more likely to be interested in those protest movements than historic examples. Continued monitoring of high-profile participants or their families is possible. Those who acquired criminal records because of their involvement in the Green Movement may face discrimination when applying for government employment, particularly if they played prominent, high-profile roles in the movement. DFAT assesses that ordinary participants who avoided arrest face a low risk of official discrimination. DFAT is unable to confirm whether those who fled the country will face harassment or discrimination upon their return.

COMPLEMENTARY PROTECTION CLAIMS

Arbitrary Deprivation of Life

Extrajudicial Killings

1.24 Border couriers, known as kolbars, who sell goods across the borders with Iraq and Pakistan on the black market, have been subject to alleged extrajudicial killings by Iranian border guards and anti-smuggling officials. The Iranian government claims the kolbars traffic illegal goods, including narcotics. According to UN Special Rapporteur Rehman’s January 2022 report, at least some examples of these killings have not been investigated by authorities. Some human rights groups have claimed that dozens of such killings happened in 2021. Hundreds of protestors were also killed by security forces in 2022-3 during demonstrations (see Protests).

Enforced or Involuntary Disappearances

1.25 According to the 2021 US Department of State Human Rights Report, plain-clothed officials seized lawyers, journalists, and activists without warning, denied they were in custody, and refused to provide information to the families of victims. According to the report, the government does not make any efforts to prevent, investigate or punish disappearances. UN Special Rapporteur Rehman reported in January 2022 of the enforced disappearance of Kurdish activists. Reporting from 2020 also noted disappearance of Baha’i and Yarsani activists.

Deaths in Custody

1.26 Iran does not publish official statistics on deaths in custody. Local media and human rights groups occasionally report deaths that may result from poor prison conditions, prisoner-on-prisoner violence or beatings by guards. In 2020, Amnesty International reported guards had opened fire with live ammunition and tear gas on prison rioters for fear of spread of COVID-19 in prisons, leading to dozens of deaths.

Death Penalty

1.27 Iran does not publish official statistics on executions, and accurate figures are difficult to obtain. However, international sources estimate that Iran implements the death penalty at one of the highest rates in the world, both in actual numbers and per capita. DFAT understands that more than 200 people were executed in 2020, as an example, and that number included juveniles who were executed when they reached the age of majority (18). According to a joint report by Norway-based Iran Human Rights (IHR) and France's Together Against the Death Penalty (ECPM), at least 333 people were executed in 2021, a 25 per cent increase from 267 in 2020. IHR indicated that Iran executed more than 500 people in 2022, and 317 in 2023 as at 9 June 2023. Women and juveniles were among those executed.

1.28 A wide range of offences are punishable by death, including murder, rape, drug possession and moral crimes that include adultery and same-sex sexual intercourse. Vaguely defined offences such as ‘insulting the prophet’, ‘enmity against God’ and ‘spreading corruption on earth’ (which can include blasphemy and heresy) (see Religion and Sexual Orientation and Gender Identity) also attract the death penalty. According to Amnesty International, drug-related executions reached about 40 per cent of the total in 2021, a five-fold increase from the previous year. International media reports suggest 109 protestors in 2022-3 were sentenced to death, with seven actually executed at the time of publication.

1.29 ‘Reconciliation committees’, made up of members of state-run NGOs, the government and religious leaders, can work with victims’ families to get them to forgive a person sentenced to death, which can lead to the overturning of the death penalty.

1.30 According to the US Department of State’s 2021 Human Rights Report, the Supreme Court is required to review and validate all death penalty sentences, but in practice this rarely happens.

Torture

1.31 Article 38 of the constitution prohibits all forms of torture for the purpose of extracting confessions or acquiring information. Article 169 of the Penal Code stipulates that a confession obtained under coercion, force, torture, or mental and physical abuses shall not be given any validity and weight.

1.32 Despite these legal protections, international human rights organisations report that torture and other mistreatment of detainees occurs in Iranian detention facilities, especially as a means to extract information. The US Department of State 2021 Human Rights Report notes torture is especially practised in pre-trial detention and can include threats of execution or rape, forced vaginal and anal examinations, sleep deprivation, suspension, forced ingestion of chemical substances, deliberate lack of medical care, electric shock (including to the genitals), burnings, use of pressure positions and severe and repeated beatings.

1.33 Political prisoners are at particular risk of torture, especially those held in pre-trial detention, as torture may be used to extract confessions. Prisons, including unofficial secret prisons, may also be the site of torture, according to human rights groups. People who violate dress codes or drink alcohol face a low risk of torture.

1.34 DFAT assesses that the authorities use violence or other pressure tactics to extract confessions from defendants, including those charged with security-related offences.

Cruel, Inhuman or Degrading Treatment or Punishment

1.35 Article 39 of the constitution prohibits all affronts to the dignity and repute of detained persons. The law allows for Sharia law punishments that include amputation, flogging, blinding and stoning and the Government does not consider these to breach constitutional provisions.

1.36 More than 100 offences attract the punishment of flogging, including dress code violations, same-sex sexual activity and alcohol consumption. Flogging has been used in political cases where offences are often vaguely worded, such as ‘propaganda’, ‘defamation’ or ‘rebellion’. Amputations, of the fingers or hands for example, may be applied for property offences such as theft.

1.37 Blindings have been used as retribution, for example where an offender has blinded a victim the punishment is to be blinded. DFAT understands blinding is rare; compensation money followed by forgiveness is more common.

1.38 Stoning is uncommon but can be applied as a punishment for adultery and same-sex sexual intercourse. The method of execution may be changed to hanging instead of stoning for these offences. DFAT understands some hard-line judges still impose the punishment on offenders but is not aware of recent examples.

1.39 In November 2022, international media reported female protesters arrested as part of anti-government protests (see Mahsa Amini protests) were raped while in detention.

Arbitrary Arrest and Detention

1.40 Article 32 of the constitution stipulates no one may be arrested ‘except by the order and in accordance with the procedure set down by law’. Authorities must communicate the charges to the arrested person in writing without delay, and forward a provisional dossier to the competent judicial authorities within 24 hours. Article 36 states that only a competent court may pass and execute a sentence, and it must be in accordance with the law. Article 37 guarantees the presumption of innocence.

1.41 Despite these constitutional protections, human rights groups allege that arbitrary arrest is common, particularly against ethnic and religious minorities, activists, journalists and their lawyers and families. The arbitrary nature of arrests makes it difficult to conclude a pattern. For further information please see the relevant section of the report about minorities or political activists.

OTHER CONSIDERATIONS

State Protection

Islamic Revolutionary Guards Corps (IRGC)

1.42 The Islamic Revolutionary Guards Corps (IRGC) is Iran’s most powerful security and military organisation, responsible for the protection and survival of the Islamic Republic. The IRCG was established as a guardian of the 1979 revolution’s values and played a key role in the early days of the Republic. It is now Iran’s preeminent internal and external security force with an army, navy and air force, which it operates separately from the regular military, and also has cyber and intelligence wings. The IRCG’s associated companies in the banking, communications, construction, shipping and other sectors play a significant role in the economy. There are around 150,000 to 200,000 members of the IRGC across various divisions.

1.43 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. International media reports and leaked documents point to IRGC involvement in more recent protests and planning to crack down on protests before price rises took effect in 2022, for example. Following the election of President Raisi, the IRGC is playing an ever-increasing role in politics, including many former IRGC officers now holding senior political appointments.

Basij Resistance Force

1.44 The Basij Resistance Force (‘the Basij’) is a volunteer paramilitary force under the command of the IRGC. 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 city and town. Not all members are uniformed and their presence on the street may not be obvious. Members include both men and women who may receive privileges for their membership, including university admission, government jobs or bank loans. The Basij arrange and provide security and dress code enforcement for religious events and festivals, and do not accept conscripts. The Basij play an informal role in the ideological vetting of candidates for professional armed service roles (especially the morality police and the IRGC).

1.45 The Basij has been used for anti-protest policing in the past, including during 2021 protests, and human rights groups allege that they have been involved in torture, forced disappearance and violence against protesters. DFAT also understands the Basij Cyber Council monitors online activity. (See also Media).

Police

1.46 The national police force of Iran are described as a ‘disciplinary force’ and may be known by their abbreviation, ‘NAJA’. They are distinct from the now-disbanded morality police, known as the Gasht-e Ershad, who enforced religious rules on hijabs, alcohol and showing affection in public. NAJA is responsible for internal security, although receives support from the IRGC and the Basij in quelling large-scale protests. NAJA have an obvious street presence, particularly in the major cities. NAJA 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

1.47 The constitution establishes an independent judiciary. In practice, the head of the judiciary is appointed by the Supreme Leader and the judiciary leadership is under control of conservative hardliners. The Chief Justice must be a cleric and specialist in Shi’a law (a mujtahid). The Courts follow the Civil Law system (similar to Europe, however unlike Australia’s adversarial Common Law system). The Supreme Court is the highest court and under it are civil, family, criminal and military courts. Among criminal courts are first- and second-class courts; the latter have three judges and the former a single judge.

1.48 Revolutionary Courts have jurisdiction over national security matters, terrorism, and offences of insulting the Supreme Leader and drug smuggling and other such crimes. According to the 2021 US Department of State Human Rights Report, most important political cases are referred to a small number of branches of the revolutionary courts, whose judges often have negligible legal training and are not independent. NGOs report revolutionary courts of first instance have issued at least 12 protest-related death sentences, with expected legal protections lacking. For example, Majid Reza Rahnavard was found guilty of enmity against God for the alleged killing of two security officers. He was executed in December 2022 just 13 days after his trial began and just 23 days after his arrest.

1.49 Human 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 in its Freedom in the World 2022 report claims political dissidents and human rights and labour rights activists face ‘arbitrary judgements’ and that the ‘security apparatus’ influence over courts has grown in recent years’. UN Special Rapporteur Rehman in his January 2022 report described the judiciary as ‘a repressive organ instead of an independent body towards which individuals can seek recourse’. The 2021 US Department of State Human Rights Report cites human rights activists who claim verdicts are decided in advance and that defendants frequently do not have an opportunity to appeal significant penalties or consult lawyers.

1.50 Access to lawyers is not guaranteed. Defendants, including political defendants may be given access to a lawyer appointed by the state or may have no access to a lawyer at all. Lawyers themselves, especially those who defend political prisoners, are often arrested or detained, which may reduce the number of people willing to defend those who are facing political charges.

1.51 Bribery of judges occurs, and rich Iranians and/or Iranians with political connections can 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). Corruption remains widespread.

Double Jeopardy

1.52 The Penal Code allows for the re-prosecution of an Iranian national for an offence committed and punished in another country where it would also be an offence under Iranian law. However, crimes committed abroad punishable by taz’ir (including drug trafficking) are excluded from re-prosecution in Iran if the accused is not tried and acquitted in the place of the commission of the crime or, in the case of conviction, the punishment is not – wholly or partly – carried out against them. The Iranian legal system is difficult to understand or predict and individual analysis of cases is complex. DFAT understands that those who serve their sentences and are released may later be made to serve further jail time for the same offence. DFAT is not aware of recent examples of double jeopardy of failed asylum seekers but understands that it is possible.

Detention and Prison

1.53 Prison conditions are widely considered to be poor. In his February 2023 report on the situation of human reports in Iran, UN Special Rapporteur Rehman described conditions in one solitary cell as ‘inhumane’. He noted severe overcrowding, ill-treatment of prisoners including prison guards assaulting prisoners, long periods of solitary confinement that amount to torture and a lack of healthcare (including routine medical care and specialist care during the COVID-19 pandemic).

1.54 The US Department of State’s 2021 Human Rights Report called prison conditions ‘harsh and life threatening’ with food shortages, ‘gross overcrowding’, inadequate sanitary conditions and lack of medical care. The report quotes human rights organisations that note a lack of medical care (sometimes as a form of punishment), contaminated food and water, water shortages, rodent and insect infestations, shortage of bedding, ‘intolerable heat’ and poor ventilation.

1.55 Political prisoners by law should experience better conditions; for example, they do not have to wear prison uniforms, should not be held in solitary confinement unless a judge deems it necessary, and should have better access to the outside world through communication with friends and family, and access to newspapers, radio and television. In practice, this does not occur. DFAT understands political prisoners are at a greater risk of torture than are other prisoners, and in many cases have not been held separately from other prisoners, meaning that the conditions described above apply equally to political prisoners.

Internal Relocation

1.56 Article 33 of the constitution stipulates that no one can be banished from their place of residence, prevented from living in the place of their choice, or compelled to reside in a given locality, except in cases provided by law. In practice, the government has placed some restrictions on internal movement. Certain groups, including registered refugees and individuals subject to security monitoring, are prevented from travelling to select provinces without permission (see Refugees and Undocumented Afghans). The US Department of State also reports some offences, including for conversions to Christianity and other religions, are sentenced to internal exile. Other Iranians can and do relocate internally, particularly for economic reasons. It is common for Iranians from less-developed provincial areas to move to major cities in search of employment. The countrywide capacity of the centrally-organised state security forces means an individual facing adverse official attention is unlikely to escape attention by internal relocation.

Treatment of Returnees

1.57 The Iranian Government has a longstanding policy of not accepting involuntary returns. Voluntary returns are possible and are sometimes assisted by returning governments or the International Organization for Migration (IOM). 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.

1.58 In general, authorities pay little attention to failed asylum seekers on their return to Iran. DFAT understands their actions (including social media posts about sur place activities) are not routinely investigated by authorities. Iranians with a public profile in Australia (or elsewhere) may have activities visible on social media tracked by the Iranian government. (See also Media.) Iranians have left the country in large numbers since the 1979 revolution, and authorities accept 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, however may take longer if 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.

1.59 DFAT assesses that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment or other forms of official discrimination. Local sources told DFAT the greater challenges for returnees are finding work and economic considerations, which will differ from person to person depending on the location of return, family support and skills and experience.

Exit and Entry Procedures

1.60 Millions 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, citizens 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). Exit permits are issued electronically.

1.61 In 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; and married women, who require their husband’s permission. Beyond their passport and, where it is required, an exit permit, Iranians exiting Iran are not required to present any other documents.

1.62 Government authorities can impose travel bans on 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 also be subjected to travel bans. Husbands of married women and fathers of unmarried women and underage children can request travel bans against their dependents. Intelligence and law enforcement services have the power to impose travel bans without judicial oversight. (See 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.

1.63 It is not possible to assess or profile travellers who will be successful in a border crossing attempt; chances of success depend on individual circumstances of the traveller and individual sanctions against them by the government, which are not always clear. Sources report the government knows of those who have departed illegally, such as via an unauthorised border crossing, and that such people will face consequences such as the inability to get a passport in the future. Passengers undertaking domestic air travel are usually only required to present their ticket. Passengers may be asked for identification, however DFAT understands this practice is not consistent. Overland border crossing, including via rugged mountain areas, is more achievable for some Iranians than crossing at official crossing points. Such actions can be very dangerous because of the risk of violent crime.

1.64 Security procedures at Imam Khomeini International Airport in Tehran are robust. They include computerised cross-checking and multiple layers of physical security and document checking. Immigration officials are considered highly competent. A source told DFAT that it was ‘next to impossible’ to bypass security procedures at Imam Khomeini International Airport. DFAT assesses that the likelihood of an individual exiting Imam Khomeini International Airport with a fraudulent passport is extremely low. DFAT assesses that it is easier to depart Iran on a fraudulent passport at land border crossings, where immigration authorities deal with a greater volume of people and their capacity can be stretched.