1833922 (Refugee)

1833922 (Refugee) [2022] AATA 1666 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1833922

COUNTRY OF REFERENCE: Iran
MEMBER:Rodger Shanahan
DATE:19 April 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2022 at 9:01am
CATCHWORDS
REFUGEE – protection visa – Iran – race – Faili Kurd – nationality – stateless – particular social group – returned asylum seeker – imputed political opinion – family involvement in Mujahideen-e-Khalq (MeK) – returned asylum seeker – detention – fear of killing – Iranian citizenship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be stateless, applied for the visa on 19 November 2015.
The applicant appeared before the Tribunal on 3 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection Visa Application
The applicant made the following statement on 4 February 2011 in support of his statement:
I am a stateless person. I do not have a right to citizenship or a right to reside in any country in the world. I am a Kurdish Faili and I am Shia Muslim. I do not know the exact date of my birth but I know I was born in year [specified] in Kout, Iraq into a Faili Kurd family.
My family were expelled from Iraq in 1981. At that time I was only [age] years old. My family resided in Ilam, Iran. I grew up in Ilam Iran and received my informal education there. My [named uncle] was executed by the Iranian regime in 1983.
Since the execution of my uncle, the Iranian authorities did not leave us alone. My mother, my father and my sister [named] were arrested and were interrogated by the Iranian authorities on many occasions. I don't know the exact detail of my uncle's crime but I have been told that he was involved with the Mojahedin Khalgh party.
Because of my uncle's involvement with the Mojahedin Khalgh and his execution the Iranian government did not help us as Iraqi refugees. At that time the Iranian government helped a lot of expelled Iraqi's but not my family. About 10 years after my uncle's execution in Iran, my cousin [Cousin A] joined the Mojahedin Khalgh's party. Shortly after that, he was assigned to kill [Leader A] who was [a specified official] in Iran. After killing him he killed himself too.
[Cousin A] and I were very close to each other. We used to go to places in Ilam a lot with each other. For this reason the Iranian authorities became interested to know, what my involvement with Mojahedin Khalgh and [Cousin A] was. I was arrested on three occasions and was interrogated for days after [Cousin A’s] death. With me [Cousin B] ([Cousin A’s] brother) and his father [Uncle A] were also arrested. [Cousin B] was jailed for three years.
Since that time I was under constant surveillance by the Iranian Etellaat. My [Uncle A] was killed one year after [Cousin A’s] death. His death was very unusual. When we found his body, his arms were tight up and his body was put under his own [vehicle]. [Cousin B] was also found dead in his room. His death was also very strange. At the time of his death his arms were also tightened.
I was always under constant stress and fear of getting killed in similar style. I could not stay in one place more than a week. I had nothing to do with my cousin's involvement in Mojahedin Khalgh but because we were close to each other, naturally I became suspect by the Iranian authorities.
I was detained for [number] days during and after the election in May 2009 by the Iranian authorities. I was detained a few days before the election and was released after [number] days. I was kept in solitary confinement without any reason. When I asked them why you are detaining me they kept telling me that for security reasons. I was not questioned or tortured during those [number] days.
Life for me became so difficult that I couldn't stay in Iran anymore. If I return to Iran I will be killed. Also as a stateless person in Iran I do not have any rights. I am sick and tired of being watched by the Iranian authorities. As a Kurdish person with such a history my life is and will be in danger for the rest of my life in both Iran and Iraq.
Lack of nationality created a lot of problems for me. I cannot prove that I am Iraqi or Iranian. If I could have any nationality with any country in the world I would happily go and live there.
AAT Hearing
The applicant was advised that there was a Farsi interpreter on-call if required given he had previously said it was his preferred language and he had used Farsi interpreters. He thanked the Tribunal and said that Faili Kurdish was his mother tongue. He was asked if he knew everything that he had previously written in his previous application and statements and whether he knew it to be true and correct.
He said it was not all correct. It was put to him that the Tribunal had not received any statement prior to the hearing and the adviser said that she had only received the case recently and he had only revealed to her recently that some of the information he had given was not all correct and she advised him to tell the Tribunal at hearing – there had not been enough time to provide a submission that needed to be translated.
Asked what he wished to change, he said that he had claimed previously that he was stateless where in fact he was an Iranian citizen and had been since he had finished his military service. This was in [a specified year] – he had done two years’ service. He did his training for three months and then did guard duty. Asked again why he did two years’ service as this was longer than normal. He said at that time it was two years.
Prior to 1991 he was Iranian. Asked if he had always been Iranian, he said this was correct. His mother was born in Iraq but his father was born in Iran. His mother got citizenship through marriage. All his siblings had been Iranian citizens since birth. Asked why he had been claiming to Australian authorities to be stateless since 2010 and had only revealed the truth three days before this hearing, he said that when he came to Australia he had no idea of what a refugee was or any knowledge of what to do.
Asked if he knew that he would have to tell the truth, he said the issue was that he didn’t know he would have to apply and once he got here he would be accepted – that would be the end. He spent 18 months in a refugee centre. He was asked the question again whether he knew he had to tell the truth, given whatever system he was exposed to he would still have to tell the truth. He agreed that he wasn’t honest. It was put to him that he had continued not to be honest at his point of entry, in his protection visa application, at his interview, in all the supporting statements over years and years. He agreed that this was the case and he had Iranian citizenship.
Asked if he was aware that whether he was stateless or not was a key question in his previous decisions, he said he was aware but he was forced to say it. Asked why he had maintained his fabricated claims for the past 12 years, he said that he was accepted as a refugee but his siblings then admitted they were Iranian and he now had to be truthful. It was put to him that his siblings’ citizenship was known before his DIBP interview and he still maintained his lie. He said that he didn’t want to go back to Iran.
It was put to him that the only reason he lied was to stay in Australia and he agreed. Regarding his claims he said that anything relating to his stateless Faili status was wrong. But he was now saying the truth. He was an Iranian passport holder and left on this passport.
If he returned to Iran, he claimed that he didn’t know what would happen to him because there was no logic. It was put to him that he needed to be specific about his claims. He said he had been outside the country for 12 years and the regime could easily accuse him of being a spy for Israel. They would wonder why he had not been sent back after a couple of years and yet had not been granted refugee status. He knew some people with similar cases who had been accused. Asked if he had any country information that would support this claim as the Tribunal was unaware of any, he claimed that the similar cases were in the Kurdish region and some were released after giving a promise not to do anything, and they were in Canada now.
When they look at his extended family and these other cases he didn’t know what they would do to him. Asked again if he claimed that he would be accused of being an Israeli spy for having been in Australia for 12 years, he said he would be asked where he had been for the last 12 years. Asked again if they would accuse him of being an Israeli spy, he said possibly, or a spy for the US or that he was coming back to undertake a terrorist attack as it had happened to other people. He would be detained at the airport and forcibly interrogated.
Asked if the Iranian authorities would be interested in him for any reason other than having been away for 12 years, he said that anyone coming back they will suspect what he had been doing. Asked again if there were any other reasons he personally would be of interest to the Iranian authorities, he claimed that the Iranian regime was a fascist regime and believed Australia was an infidel country and that he had been doing illegal things. It was put to him that this was really the same claim he had made already.
He said he would be sent to the court. He was asked if he had any country information that would support his claim that people who had been outside Iran for extended periods of time would be considered to be spies for the US or Israel or terrorists. The Tribunal’s country information indicated that people who returned to Iran without prior political profiles were of no real interest to the authorities and they didn’t really care if someone had applied for protection or not. Nobody would consider him to be a spy simply for having been outside the country, or even for unsuccessfully applying for protection.
He said he was from a family where he had cousins who had been executed and so he would be under question because of this. Asked if this was the family members involved in the Mujahideen-e-Khalq (MeK) and the cousin involved in the assassination of an Iranian [official]. He said this was correct. His cousin was [Cousin A1] but his nickname was [Cousin A]. It was put to him that [this name] was quite a common name in Iran and there were hundreds of thousands of people with this name, and he was asked if there was any evidence that [Cousin A] was involved in the assassination and if so, whether this [name] was a cousin of his.
He said the Tribunal was right but it was a famous name in Ilam and there was only his family that used it in Ilam and they all lived in the same area. He knew [Cousin A] well and that he was a family member. Asked again if he had any evidence that [Cousin A] took part in the assassination and whether he was named in any document. He said that he did – it was put to him that he had 12 years to provide it and thought he would have done so already. He said he had no newspaper but on Youtube the MeK had everything about him and what happened and he would give the Tribunal the site. He was told that he would be given time post-hearing to provide this.
He was then asked if he had any evidence that [Cousin A] was his cousin given it was simply based on his oral evidence and he had already spent 12 years claiming to be stateless when he wasn’t. He said he did have proof and he would call his mother and get [Cousin A’s] details and take a photo of his gravesite and it could be compared with his mother’s letter. He was asked again if he could provide evidence that the assassin was his cousin. He again said that two of his family members were executed (including his cousin) and because so many people were executed at this time so it was hard to get a copy of any documents. He again said his mother could give him his details and they would take a photo of his grave. This was for his uncle [name variation] who was executed around 1980 (statement said 1983) – he then said it was 1991. [Cousin A] was killed around 1994.
Asked if anything happened to him because of these alleged family links to MeK, he said that when his uncle was executed he was a child. When [Cousin A] was killed, he was also detained (they were close friends) with his sister and they were questioned. Asked why his uncle was executed, he claimed that during the revolution the MeK and other opposition groups disagreed with each other and they went to Iraq and then operated inside Iran. His family lived on the border so his uncle was accused of supporting the groups and his uncle was detained and shot.
Asked when and how often he was detained because of his links to his cousin, he claimed that the whole family was questioned many times and the had to report to the authorities every two days that they were still present – it lasted a very long time. Asked when these detentions started and stopped, he said it began about 1995 and lasted about six months. Asked how many times he was detained by the authorities, he claimed that he wasn’t jailed but was interrogated only.
Asked how many times he was detained overnight because of [Cousin A], he said he was never jailed because of [Cousin A]. Asked if he had even been detained overnight at a jail, police station or other facility, he claimed that he was arrested for something else, nothing to do with [Cousin A]. Asked if he had only been detained overnight once, he agreed. He also agreed that he was only of interest because of his relationship with [Cousin A] for a six-month period in 1995.
Regarding his one detention, he said that he didn’t have work and he did farm work with animals, or he did smuggling. In the 2009 elections the MeK were operating in the border, and during this time he was detained by the IRGC (and then handed over to the Etilaat) and asked if he was [Cousin A’s] cousin as well as other questions. He was detained for [number] days and nothing had happened for the first two days. Then they came with all his family information, saying they knew he was [Cousin A’s] cousin and asking what he was doing near the border.
He used to help people to cross the border to visit Shi’a shrines and he denied any other activities. They realised he had no activity in politics and they released him. Asked if they asked him about [Cousin A] or links to MeK, he claimed that his detention coincided with the 2009 election dispute which was why he was picked up. They asked him about [Cousin A] and he was honest about his family connections. They realised he was just smuggling people for work and he was released. He had no issues leaving the airport when he left because he had no issues with the government.
It was put to him that he had been detained once and released because they had no concerns about his political activity and he left the country without problems, and he was asked why they would have problems with him now, 12 years after he left. He claimed that after 12 years it is hard for him to return and answer to them why he was unsuccessful at claiming asylum. It was put to him that country information indicated that the Iranian authorities were unlikely to ask him any questions.
He said each person had their own circumstances and story so things could not be generalised. For example his sister and family had been accepted as refugees in Australia and yet he hadn’t been. This would raise questions with the Iranian authorities. He also had [other relatives] here. They told him that they had been accepted as refugees as well. He said that regarding his sister and her family he was 100 per cent certain. Regarding his brothers he had disputes so he wasn’t totally sure, and one had said they had and the other not but he didn’t know. Asked if he had a court case with his family, he said he had an issue with his youngest brother who broke windows and he called the police.

Asked if he was currently seeing anyone for mental health issues or had in the past, he said he had in the past in 2016 but wasn’t currently. He hadn’t seen anyone before 2016 but attended 10-20 sessions in 2016 with a Persian speaker. He went to the specialist who said he had a breathing issue and not a mental health issue. He [has a specified medical condition]. It was put to him that he could provide any evidence from a psychologist post-hearing if he wished. He repeated that he had attended the psychologist and could get reports from them. He had also attended [a named] Hospital because he [has this specified medical condition] and had also lost his teeth and also had breathing problems which affected other parts of his body. It was put to him that this didn’t have anything to do with his claim.
He was told about s 424AA and it was put to him that he had said at hearing that he had only been detained overnight on one occasion in Iran and that this was for [number] days. He said this was regarding [Cousin A]. It was put to him that in his 2011 statement he had claimed that he had been arrested and interrogated on three occasions following [Cousin A’s] death, sometimes for days. In his interview this inconsistency was explored with him and he was being very vague in his response and the delegate told him to be more specific.
He told the delegate that the first time was for around 12 days and he was kept in solitary for some time and he was continually arrested any time there was an anniversary of something. It was put to him that he had said he was detained three times and he replied that he had been detained many, many times and he was detained for between two and five days. There were inconsistencies between what he wrote in 2011, what he told the Department in 2016 and what he said at the hearing today.
He claimed that he was detained more than once. He said he was waiting for the question from the Tribunal. He was always detained on these commemorations. It was put to him that the question asked him how many times he was detained and it was quite clear. He said he thought he was only being asked about [Cousin A]. Asked why he was detained on other occasions and when these detentions started and stopped, he claimed that he mixed up things. He was talking about 2003/2004 but [Cousin A] was 1995/1996 and then he was detained many times during this time. He was family so they were detained for one or two days.
He was asked when these many, many times when he was detained for two to five days occurred and he claimed that when the [Cousin A] issue occurred they didn’t know what happened but the authorities took him, his parents and sister. He was blindfolded. He was asked to answer the question regarding when his many, many detentions started and stopped. He claimed that there were two events - the 2009 elections and the anniversary of the Revolution on 11 February. It was put to him that he had said many, many times and he disagreed. It was put to him that the member was reading his own hand-written notes of the interview and the delegate had been querying him on his vagueness which was when he said he had been detained many, many times for between two and five days any time there was an election or an anniversary.
He claimed that he didn’t want to say anything else other than about the two periods of detention he had mentioned. Asked if he had ever mentioned these periods of detention (many, many times at elections and anniversaries) previously as there was nothing in his statements about them, he said that he had – he was told that he could point out to the Tribunal later where he had mentioned these numerous detentions elsewhere as it was unable to find mention of them.
It was also put to him under s 424AA that he had previously been asked whether, during his [number] days detention he was asked about his cousin [Cousin A] during interrogations and he said they did but the authorities worked out that he didn’t have any involvement in [Cousin A’s] activities. He had been asked the same question by the delegate at interview but he had told them that the issue was too old and he was never asked about it. There was a concern that this inconsistency could call into question his credibility. He claimed that he had been detained for [number] days and he passed on whatever they had asked him – he was being honest. He was sure he hadn’t said this and it had occurred a long time ago.
Also under s 424AA it was put to him that he had been asked about his cousin’s assassination of [Leader A] and he had gone into some detail about the incident, saying that [Leader A] was working in the bazaar and his cousin’s group carried out the attack using [a specified weapon], and his cousin killed himself by [method]. This information was freely available on the internet, including a question to the Canadian Immigration Board about the incident. Hence the details he gave of the incident as proof that his cousin was involved didn’t really prove anything as it was easily taken from the internet. Indeed there didn’t appear to be anyone of his cousin’s name who was involved, and that name was a common one in Iran so even if there was someone of that name it didn’t necessarily mean that they were related.
The applicant claimed that he could call his cousin’s brother to show his identity details and this could be compared to what was online and it would show he was telling the truth. He could get [Cousin A’s] documents to show that [Cousin A] was his cousin. The third member of the assassination team (who survived) got to the MeK base in Iraq.
It was put to him that while the Tribunal accepted he was Kurdish, he had also been educated, employed and done military service in Iran and country information indicated that Kurds in Iran who are citizens have the normal range of citizen benefits so simply being Kurdish in Iran did not seem in and of itself persecutory.
It was also put to him that he had lied about his statelessness for more than a decade and pushed back on decision-makers who had suggested he was not stateless. This would have a marked impact on the way that the Tribunal viewed his credibility, particularly where claims relied entirely on his oral testimony. He said that he had reached a point where he had decided to tell the truth and knew he had lied previously. He said he had come from a place where everyone lied. The effect of the country was still felt by him. He also said that some members of his family had their claims accepted and others didn’t so the Australian government should be consistent and either accept them all or reject them all. He was advised that the Tribunal was only focused on his claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age] year-old single man who arrived in Australia as an unauthorised maritime arrival [in] December 2010. The applicant claimed that he was a stateless Faili Kurd throughout his protection visa application process, however as I note below he admitted at hearing that he was in fact an Iranian citizen, and had been at the time he arrived in Australia. I therefore accept that Iran is the applicants’ country of nationality.
The applicant claimed that if he returned to Iran he could be accused of being a spy for Israel or the US or that he was returning to carry out a terrorist attack. He further claimed that he would be under suspicion because his family were members of MeK and a cousin had been involved in the assassination of [an Iranian official].
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account a psychologist’s report furnished post-hearing. The applicant stated at hearing that he had attended 10-20 sessions with a Persian-speaker in 2016 and later went to a specialist who said he had a breathing and not a mental health issue. The psychologist’s letter stated that he had five therapy sessions over a two-week period in December 2017. The psychologist said the applicant suffered from severe depression and panic attacks and PTSD and that his mental health was at that time at a critical stage.
I lend the psychologist’s report little weight given it was based in whole or in part on an interview with the applicant and written responses to questions. I have found the applicant willing to maintain fabricated claims regarding significant, and traumatic life events over an extended period of time and hence I have little confidence that the information on which the psychologist’s assessment is based is accurate. The psychologist for example referred to many traumatic life events the applicant suffered in his homeland, whilst I have found his traumatic experiences that he related to the Tribunal to have been fabricated.
I found the evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Credibility
Some of the applicant’s siblings arrived in Australia in May 2013 as unauthorised maritime arrivals and advised that they were Kurdish citizens of Iran, providing documentation in support of this claim. From the time the applicant arrived in Australia in December 2010 however, until his hearing the applicant steadfastly maintained his claim that he was a stateless Faili Kurd born in Iraq on a date he did not know and suffered persecution because of this even though he knew that his claim to be stateless was not true.
An identity assessment was carried out on him in September 2015 that concluded he was Iranian, and even when the delegate put to him in a June 2018 interview that because his siblings were Iranian then he must be too he stated that even if they were, he had been born in Iraq and was unable to obtain Iranian citizenship. It was not until the AAT hearing, more than a decade after he arrived in Australia, that he told the truth and acknowledged that he was actually an Iranian citizen. Post-hearing he provided a copy of his birth certificate that indicated he had been born in Ilam (not Iraq as he claimed) on [date].
Because of the applicant’s willingness to portray himself as a stateless person to numerous Commonwealth officials over many years even when he knew he was not, the Tribunal has adopted an adverse view of his credibility when determining the truthfulness of his other claims that rely on his oral testimony.
Statelessness
Because the applicant has acknowledged that he is not stateless and is actually an Iranian citizen, any claims that he has made regarding being persecuted for his statelessness are no longer relevant and will not be addressed.
Ethnicity
The applicant made no specific claim that simply being Kurdish would lead him to be persecuted and, in a post-hearing submission the applicant’s adviser asserted that it was the applicant’s ethnicity combined with his profile as a failed asylum seeker and someone with, or imputed with anti-regime political opinion that would mean that he would be at risk.
The latter appendages to his claim will be addressed separately, however the Tribunal does not accept that they are issues that apply to the applicant or would raise his risk profile either independently or in combination with his ethnicity. Because of this, the Tribunal will consider his claim regarding his ethnicity on its own.
Country information indicates that Kurds are not specifically targeted for discrimination based on their ethnicity and access government services and are afforded state protection to the same degree as other ethnic minorities. The Tribunal has not made a determination whether the applicant is a Faili Kurd or not because it is immaterial to his claim, given that country information indicates that Faili Kurds who are Iranian citizens enjoy the same rights as other Iranians.[1] The applicant has been educated, undertaken military service and been employed in Iran and would therefore appear to have enjoyed the normal range of experiences of other Iranian citizens.
[1] DFAT Country Information Report – Iran, 14 April 2020, pp 27-8.
Therefore, while the Tribunal accepts that the applicant is an Iranian Kurd, it does not accept that there is a real chance that he will suffer serious harm because of it.
Family Political Profile
I do not accept that the applicant’s uncle was hanged by the Iranian regime in 1983 or that a cousin died after assassinating an Iranian official, and that because of these familial links with the MeK he and other members of his family were detained and questioned on occasion. To begin with this relies solely on his oral testimony which I have already indicated lacks credibility.
He also claimed that because of his uncle being hanged, the Iranian authorities never helped them as Iraqi refugees. The reality is that they were never Iraqi refugees.
He provided no country information that supported his claim that someone by the name of [Cousin A or] [Cousin A1] was involved in the 1998 assassination of [Leader A], neither was any available to the Tribunal. The applicant claimed that he could provide some evidence via Youtube that this was the case post-hearing, however none was provided. The details regarding the assassination were readily available on the internet so his knowledge of the event is not indicative of a familial association with it.
He was also inaccurate with the dates of these events. He claimed in his statement that his uncle was hanged in 1983, at hearing he said around 1980 and then that it was 1991. He said that [Cousin A] was killed around 1994 and that he was only of interest to Iranian authorities because of [Cousin A] for a six-month period around 1995 when the assassination was carried out in 1998. Whilst not determinant in and of itself, the inconsistency in the dates he provided for significant events in Iran simply adds to the Tribunal’s already serious concerns regarding his credibility.
I also do not accept that the applicant was ever detained and/or questioned by Iranian authorities for his own activities or those related to family members. There were several inconsistencies in his evidence in various statements/interviews that makes the Tribunal disbelieve the claims. In his 2011 statement, he claimed that he was arrested and questioned on three occasions following [Cousin A’s] death and the interrogation sometimes lasted for days.
At hearing he claimed that he had only been detained overnight on one occasion (for [number] days) around the time of the 2009 elections when he was smuggling in the border region and he was detained by the IRGC and handed over to the Etila’at. He was asked about [Cousin A] but when they realised he had nothing to do with the MeK he was released.
During his interview he was asked to clarify the detention regime he was subject to, and he claimed that he had been detained many, many times for between two and five days. The first time was for 12 days and he was detained every time there was a commemoration or anniversary. I do not accept that he never claimed to have been detained many, many times given the member listened to the interview and took hand-written notes of what the applicant said. Nor do I accept that he was only referring to being detained because of [Cousin A], given his [period] detention allegedly occurred during the 2009 election – 20 years after the assassination during which [Cousin A] was allegedly killed.
Extended period of time away and asylum claimant
I do not accept that the applicant would be accused of being a spy for the US or Israel or that he was coming back to undertake a terrorist attack because he had been away from Iran for 12 years. He provided no country information to support such a claim. And while he claimed he would be under question because of his family links to the MeK, I have not accepted that any such links exist and that he fabricated the claim regarding familial links with MeK.
The Tribunal’s country information paints a different picture and indicates that Iranian authorities pay little attention to failed asylum seekers on their return to Iran and that unless they were the subject of adverse official attention prior to departing Iran (such as for political activism) returnees are unlikely to attract attention from the authorities.[2]
[2] Ibid, p 70.
The post-hearing submission made claims that he belonged to a particular social group (PSG) of involuntarily returned Faili Kurd failed asylum seekers. I do not accept that he belongs, or would belong to such a group. The idea that he would be involuntarily returned to Iran was never raised at hearing by the applicant, nor has the adviser indicated why she believes that he would be involuntarily returned. Country information[3] indicates that Iran has a global and longstanding policy of not accepting involuntarily returns – this was reiterated by the Iranian foreign minister during his visit to Australia in 2016.[4]
[3] Ibid
[4] Iran would welcome back asylum seekers 'with pride', Iranian Foreign Minister says - ABC News, accessed 12 April 2021.
Nor do I accept that the applicant’s profile as a failed asylum seeker would be raised because he associated with other Iranian asylum seekers opposed to the regime while in Australia, or because he has relatives accepted as refugees in Australia. There was no indication given as to how the Iranian authorities would be aware of who the applicant associated with whilst he was in Australia, or whether or which relatives were granted protection visas. Country information also indicates that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside of Iran, including posting social media comments critical of the government, converting to Christianity or a number of other activities.[5]
Other Issues
[5] DFAT, op cit, p 70
I do not accept that the applicant was under constant surveillance in Iran or that his [Uncle A] was killed a year after [Cousin A] and his cousin [Cousin B] were found dead in suspicious circumstances with their arms tied. The claims rely entirely on the applicant’s oral testimony which I have found lacks credibility.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because the applicant has admitted that he is not stateless and is actually an Iranian citizen, and because I do not accept that he would suffer significant harm for being a Kurd, Faili or other, that his family had any connections with the MeK or their activities, that he was of interest to the Iranian authorities or was ever detained or questioned, that he would be involuntarily returned to Iran or accused of being a spy or carrying out terrorist activities on return because he had been out of the country for 12 years, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

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

[2022] AATA 1666

19 April 2022

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