1836028 (Refugee)

1836028 (Refugee) [2023] AATA 4019 (31 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Jessica Shinnick (MARN: 1802082)
CASE NUMBERS: 1836028
2214002

COUNTRY OF REFERENCE: Iran
MEMBER:Justin Meyer
DATE:31 August 2023
PLACE OF DECISION: Melbourne
DECISION:For case number 1836028: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
For case number 2214002: The Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 18 June 2020 was not valid.

Statement made on 31 August 2023 at 4:39pm
CATCHWORDS
REFUGEE – Protection Visa – Iran –second visa application is, and always was, barred under s 48A – renunciation of Islam – anti-regime political views – pro-Shah political opinion – large tatoos on body – was attacked with acid – Western appearance and behaviour – false allegation – membership of the particular social group – Iranians who have renounced or no longer follow Islam – Iranians who have tattoos – a failed asylum seeker from a Western country – a forced returnee – applicant may be of adverse interest to the Iranian authorities – effective protection measures are not available to the applicant– applicant has a well-founded fear of persecution– applicant’s second visa application is invalid –decision under review set aside – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 48, 91, 65, 423A, 473, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Rajalingam (1999) 93 FCR 220

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 decisions made by a delegate of the Minister for Home Affairs on 10 July 2018 and 9 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Iran, applied for the visas on 4 April 2017 and 18 June 2020. The delegate refused to grant the visas on the basis that they were not satisfied that the applicant was a refugee as defined by s5H(1) of the Act and also not satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. Further the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there was a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 7 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A], the applicant’s partner. 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.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 10 July 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicant applied for a Safe Haven Enterprise visa on 6 April 2017 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 18 June 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because they were not within the class of persons specified in the then Minister’s s 48B determination.
The second visa application was refused by a delegate on 9 August 2022 . An application for review of that decision was made on 20 September 2022. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
CRITERIA FOR A PROTECTION VISA
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
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Iran and if not, whether 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 he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity
The first applicant's identity is established as a [age]-year-old male, as evidenced by an Iranian passport. He is a citizen of Iran.
Claims made to the department
·The applicant resented not having what he considered rights to engage in youthful activities such as wearing fashionable clothes, having a relationship with a girlfriend, listening to loud music while driving sports cars.
·Being from a religious city, he found he had to follow the conduct endorsed by the Basij and Sepah. He used to argue and have confrontations with them.
·In 2004, the applicant got a tattoo of a lion on his [body part]. He claims the lion is the symbol of the Shah.
·The applicant was swimming one day at a public pool. The Basij saw the tattoo and reported him to the Seppah.
·The applicant claims he was arrested and repeatedly tortured by the Sepah who warned him to remove the tattoo or they would remove it for him. The applicant stated he didn’t take the threat seriously.
·In 2006, the applicant was driving a work vehicle. It was dark and he reduced speed where there were road works in progress. The applicant noticed some motorcycle riders. A few seconds later the back door of the vehicle opened and when he turned to look back he had acid thrown in his face. He managed to continue his route to the nearby factory where his co-workers called an ambulance and he was treated in hospital for burns to his face and body.
·The applicant claims that as Sepah had not succeeded in blinding him, they took him from hospital and accused him of rape and having illegitimate relationships with men and women.
·He was taken to prison. Before his court appearance a story was published about him in the newspaper to discredit him.
·After a number of court hearings and examinations by the coroner, the applicant was eventually acquitted for lack of evidence and released from prison after two and a half years.
·Upon his release, Sepah summoned the applicant and confiscated all of his identification documents. He was ordered to report to them every Saturday about his weekly activities.
·Every week at the meetings the applicant was insulted, threatened and tortured. At one meeting, the Sepah told the applicant they would eventually kill him.
·The applicant responded to a subpoena in 2013. The applicant was charged with clashing with Basij and Sepah. He claims this was a new plan to frame him.
·The applicant was sent to [City 1] prison but released after one month as his father had signed a collateral deed to his house.
·The applicant applied for a visa to flee Iran but found his passport was blocked. His uncle paid a smuggler 10,000,000 Toman to have a visa issued and buy a ticket to [Country 1].
·The applicant left Iran through Imam Khomeini airport on [date] March 2013.
·The applicant claims that the Sepah continue to send him subpoenas to the family residence and they are trying to confiscate the house from the family.
The following answer was provided in response to question 89 of the visa application form:
Official Translation from Persian
Form 790 - Part C; Question 89 page 20
My Name is [Mr B]. I was born in Shahr-e Ray in 1983 in a working family of six. I went to school in 1990 and studied until 1999. I was very much fond of [a sport] game. After studies, I went to compulsory military service and later on became a [occupation] for a period of two years.
After being released from prison, I started to [work] for a period of over a year. I grew up in Shahr-e Ray which is a religious city.
Youthful years are considered the best years of someone's life. However, for me, it was the beginning of countless problems with Basij and Sepah of Shahr-e Ray. That was because I was full of energy and youth and had no interest to follow up the beliefs of Basijies of Shahr-e Ray and no one could force me to follow their beliefs. But this was the beginning of all my problems which at the end, after two and a half years imprisonment, acid attack, exposed on newspaper and being tortured, I was forced to flee my country and go abroad in order to save my life and to leave my family behind which was truly hard for me.
Being young is also the time to find and form relationship. In Shahr-e Ray which is a religious city I had no right to have a relationship with my girlfriend, driving with loud music, driving a sport car, waring fashionable clothes and normal inconsequential citizenship rights. In my city, religious gatherings and mourning are customary everywhere and I had to follow Sepah and Basijies' ways.
When I was young, I started to argue, have conflict and clash with them as I had no interest to follow them. This caused a lot of problems for me and at the end was the reason for ruination of my life, my youth and my good looks and I was forced to escape from Iran.[body part] and lion was the symbol of the past monarchy of li-an (previous Shah). I was swimming in the swimming pool when one Basiji saw that on my [body] and reported me to the Sepah and this was the beginning of all my problems. After I got arrested and repeatedly tortured, Sepah gave me a warning that "if you do not remove that tattoo on your [body] we will remove it for you" and I didn't take this treat seriously.
In 2006, they poured acid on me while I was driving. I was driving a factory shift car in [City 1] and it was dark.
The road was getting prepared for asphalt and I was forced to reduce the car speed. I saw a few motor cycle riders over there, but I continued. I felt that for a few seconds the back door of the car got opened and when I turned to look, my face got burned horribly. For some seconds I didn't know what happed to me. I arrived at the factory and the factory workers called an ambulance. They took me to the hospital for washing my right eye and after that they transferred me to [a] Hospital for burn treatment on my body. I was hospitalised and underwent a number of surgeries. As Sepah did not reach its aim of blinding me, they didn't leave me alone and systematically and with previous plans took me from the hospital bed and into a prison accusing me of rape and illegitimate relationship with man and woman, meanwhile the extremely filthy prison was dangerous for my burnt body and the risk of infection was threatening my body. They took me to [Prison 1] and then transferred to [another] prison. I was in prison waiting for court hearing appointment that withouta trial and any evidence they published my story in the newspaper.
On the visiting day, my family told me that they read the news of my arrest in the newspaper. After a number of court hearings and examinations by the coroner, nothing was proven in regards to the rape and after enduring so much hardship and difficulties I got acquitted and released from prison after two and a half years. After two and a half tough and unbearable years in filthy iran's prisons with a burnt body.
My family had to sell the [vehicle] in order to pay the lawyer's fee, the lawyer who was doing my legal work and eventually I got acquitted for lack of evidence. After my release, Sepah summoned me and confiscated all my identification documents. They told me that every Saturday, I had to go to Sepab and report my weekly activities. Every week and in every meeting I was threatened, insulted and tortured. I was not leaving home anymore. Sepah was much more powerful than before. After the 2009 election, no one dared to breathe because of Sepah, as they would easily kill a person.
After my freedom, [father] gave me his savings and I started to [work] until 2012, every week, there were threats, arrest and beating. In one of the weekly meetings, one Sepahi told me that eventually we will kill you and threatened me to death. After a few months in 2013, I went to Sepah after a subpoena was sent to our house. They sent me to court on charge ol clash with Shahr-e Ray's Basij and Sepah framing and a new plan They sent me to [City 1] prison, one of the most horrendous prisons that in 2009, many Iranian youth were sent and got killed, paralysed and raped there. I got released after one month by leaving a collateral deed (house). My situation was very hard. After the release, my father told me that "I don't need the house, just escape from here". I applied for visa but was told that my passport is blocked.
My uncle found someone and by paying 10,000,000 Tornan a visa, ticket to [Country 1] and coordination with a smuggler was organised.
I escaped on [date]/03/2013 via Imam Khomeini airport and went to [Country 1]. At that time, [Country 1] was the easiest way to go to a third country such as Australia, New Zealand, etc. And in [Country 1] by paying $5000 US to the smuggler, I came to Australia under very difficult condition. Still after 4 years, Sepah sends subpoenas to my address and my family has been forced to leave that house. Sepah is trying to confiscate our house and that is very hard and painful for my old father and
mother.
Since I have come to Australia, I have no stress, fear, enemy or feeling of being in danger. I go to gym and English classes, have found new friends and am happy with my life. I have no problem with the government, police or any other organisation in Australia. Finally, I implore the government of Australia to help me and assist me in saving my life and granting me a migration visa.
[MR B]
Signed
Translation Certified on March 20, 2017
The following critical documents provided to the department:
·Verdict
Official Translation from Persian
Emblem of the Judiciary of Islamic Republic of Iran
No. [deleted]
Date: May 04, 2008 Verdict No.: [number] Classified No.: [number]
Investigating Unit: [deleted]
Plaintiff [name] with lawyer [name] - [address]
Respondent: [MR B] with lawyer [Mr D][name and address]
Charge: Kidnapping and Involvement in kidnapping
Court Verdict
In relation to the charge against Mr. [MR B] son of [Mr C], [age] years old 2) [Mr D] son of [name], --years old, Daee Rab (unknown terminology) of involvement in kidnapping subject of complaint by I- [Mr E] son of [name], 2) [name] son of [name], due to insufficient proof and strong denial of the defendants and the second defendant's statement ([Mr D]) that he has seen the first plaintiff has bothered the second defendant and has taken him into his car by fear or promises, that if he says such thing, they will harass him instead. Therefore, in light of contradictory statements of the complainants that have said act of sodomy has occurred, and in another statement has said he was able to escape or has said that they put me in a [car] with the threat of a glass bottle, and in another statement has said that" I got into the [car] as a passenger, the court considers the alleged offence against the defendants is not proven for the court and according to presumption of innocence the defendants' acquittal verdict is issued and announced. The given verdict is subject to appeal at the Supreme Court within 20 days.
[name],
Head of [court]
Translation Certified on March 20, 2017
·Official Translation from Persian
Emblem of the Judiciary of Islamic Republic of Iran
Verdict
Date: 17/11/2009 Classified File No.: [number] Verdict No.: [number]
Investigating Unit: [a] Court, Branch [number]
Branch Committee: [deleted]
Plaintiff:
1- [name] son of [name] of [address]
2- [Mr E] son of [name] with lawyer [name] of [address]
Accused: [MR B] son of [Mr C] with lawyers [name] of [address]
Charge: Sodomy and Homosexuality
On 17/11/2009. [A court] is being formed at the appointed time with attendance of the signatories below, to investigate the classified file No. [number]. The court with respect to the content of the file announces the termination of the proceedings, and after consultation and with God's assistance establishes the following verdict.
Court Verdict
In relation to the charges against [MR B] of committing act of sodomy on [Mr D] and committing a homosexual act on [Mr E], the accused has denied the sodomy offence and the plaintiff [Mr D] has failed to attend the recent court hearings and has not sent a written statement. Furthermore, based on the report of the coroner which indicates no evident sign and the long time that has taken for the plaintiff to raise a complaint and has complained only after the second plaintiff has complained and the accused has been arrested the court based on Article A, clause 177 of Code of Criminal Procedure, find the accused not guilty of sodomy offence which is the subject of complaint by [Mr D]. In relation to the other offence of homosexual act, with attention to the complaint by plaintiff [Mr E], the way the defendant has given his statements and the ineffective defence by his lawyer, it proofs with respect to the presented circumstantial evidences that according to Article 170 of Islamic Penal Law and accused conformity with Article 121 of the same law is sentencing the accused to endure 100 lashes which is the religious limit for homosexual act. The verdict was given in presence and is subject to appeal at the Supreme Court within 20 days.
[name].
[a] Criminal [Court]
(Counsellors: [names]
Translation Certified on March 20, 2017
·Full Driving License (2nd Grade)
Ten-year Validity
Mr [MR B], son of [Mr C], born on [date] having a birth certificate No [number].
Claims made to the Tribunal

The applicant’s partner, [Ms A], made a statement along these lines:
·The parties have been in a relationship for approximately four years.
·On the second or third time she visited the applicant’s home, she accidentally knocked the burning coal from his sheesha and damaged a sheet but the applicant’s only concern was for her safety.
·He does not often speak of Iran without prompting. He has been through a lot, and fears for his life if he has to return to Iran because of his political views, and because he has tattoos that represent the former Iranian king.
·When bad memories and experiences return to mind, the applicant changes the topic. The most she had heard him speak about Iran was during the Mahsa Amini protests when things were so chaotic that the government had the country under strict censorship through internet blackouts. He constantly worried about the safety of his parents and siblings.
·The applicant told [Ms A] that he felt fortunate not to be in Iran particularly during this period. It made her worry about her own safety if she were to one day visit his family. She thought she might be punished for not wearing a hijab, showing too much skin or not wearing loose clothing.
·She voiced her concerns with the applicant, who assured her that since it was never going to be safe for him to return to Iran, visiting his family it would take place in a third country that is accessible for his elderly parents to travel to. She asked him about his tattoos fairly early in the relationship.
·In order to understand the applicant better [Ms A] asked about the origin of his tattoos. He has three separate [tattoos]. His tattoos represent the lion on the old Iranian flag. He said he believes this figure represents what a man should be in society, a strong leader and a provider.
·He spoke of how dangerous these tattoos are if he returned to Iran because they represent his connection to the former Shah, and his dislike of the current regime. If he is detained by police he thinks they will cut his leg off [so] that the whole tattoo is removed. The applicant takes great pride in speaking about the history of Iran prior to the Islamic Revolution. He has posted a couple of times on [social media] in support of the royal family. He is not very active on social media and only has [number] posts on [social media]. He has a copy of the old Iranian flag that hangs on the wall beside his bed and it has been there for as long as Ms [A] has known him. He has told her about Iran when the previous king was in power before the Islamic Revolution. He was very proud when he talked about Iran during this period, and she had not seen him talk about Iran like that before. He applicant told her that Iran at that time was a better country, and its people were much happier.
·[Ms A] thinks she has only asked about the applicant’s scars once, which was after the parties had been dating for a few months. The cause of the scars appeared very traumatic. He explained he received scarring on his face and body because when he was a child he played with a gas cooker and it blew up. He is very self-conscious about the scarring, particularly on his [face]. She respects his boundaries when it comes to talking about his past and the scars. She does not think she have brought it up or discussed thescars since.
·The applicant is not afraid of hard work. During his time in Australia he has worked as a [occupation], often working 12 hours shifts 7 days per week. He is also willing to do high risk jobs such as [details deleted]. He has paid his fair share of tax during these periods, and despite that has sometimes struggled to access Medicare and had no access to government assistance during COVID.
·The applicant is a quiet, shy and kind man. He can look intimidating, but he is actually very gentle and caring. He is always willing to help [Ms A] and in the past has given her money to pay for her rent and expenses when she was stressed and waiting for her salary to be paid. Although she has offered to repay him, he refused. The couple do not get to spend all of their time together because of the applicant’s work hours, and he often works night shifts. Their time together is ‘quality time’. The parties would like to marry one day. They have discussed that since very early in their relationship, however the applicant does not feel like he can move forward with his life until he has some certainty about his visa status in Australia. [Ms A] told the applicant does not want to have a big wedding and he agreed with that. The applicant’s father is quite unwell after suffering a stroke, so his family would not be able to come to Australia for a wedding anyway.
·The applicant has been waiting and hoping for a long time to receive a visa to allow him to remain in Australia. He has been very stressed about this visa application process and whenever something important happens, such as he is invited for an interview or hearing, he gets more stressed. She can see the stress in his face and he has aged a lot in the time she has known him.
·Sometimes the parties talk about what will happen if the applicant receives a visa, and he promises to take her on holiday when that happens. They have talked about buying a house and having a family together but the applicant has told her that while he is in limbo it would not be fair on her if they did and then he had to leave Australia.
They are looking forward to the day when we can make plans together for the future.
Evidence in the hearing
The applicant
The applicant stated that he was from Shahre Rey within the Tehran Province of Iran. He said he had his parents, [siblings] remaining in Iran. He has a [education]. He had worked [doing specified jobs] before he departed Iran at the age of [age].
He has never married but has a partner in Australia. In Iran he had a girlfriend with whom he cohabited.
He said he came from a nominally Islamic family that he did not attend mosque. He said he believed in God but did not have anything to do with Islam. He added that he was trying to be respectful in the presence of the interpreter in the hearing but had to say that he hated Islam. In Iran he worn fashionable clothing and had a girlfriend.
This way of life was disapproved of by government. Sometimes they would catch him on the street and beat him up. He also listened to modern music especially when driving.
He had a few tattoos done. He did this after completing his national service. It was in the military for two years. He [did specified work]. He did not want to do military service but wanted to have a passport after military service. He said the flower of his youth was lost.
At the age of [age] he wanted to be as professional [a sport] player. Unfortunately needed an [operation] and this ended this dream. Until the age of [age] he stayed with his parents with whom he was very close.
The problem was that everything was dangerous and haram.
On one occasion when he hanging around with friends he was taken with his girlfriend to the police station and beaten. He was hit with a baton from behind.
The applicant said that things were better under the Shah. He said he loved the country as it was when the Shah was there.
He said he needed to do his exercises after his [operation]. That was the reason for going to the swimming pool. He went early in the morning so as to avoid attention. The lion tattoo is visible on his body. He also had a symbol [on] his leg which caused more problems.
He was sent to the police station and severely beaten. It was not a permanent injury.
The authorities kept asking him to remove the tattoo. He could not listen to his music while driving and he could not hold the hand of his girlfriend. He would be stopped when driving around with his girlfriend and asking him if he was married. He would be taken to a Basij station. He lied that his girlfriend was his wife. He was beaten and punished.
He said that despite the treatment he received he did not change his behaviour and continued to live his life as before. The Basij did these types of actions against him several times.
He still had problems “all of the time” and he would be stopped anywhere. His parents always worried about him.
His friends would do haram things but only behind closed doors.
He wanted to be a normal person and Islam gave him no freedom. They would not let him live like a normal person. He started reading about the Shah and his era and concluded that things were much better then. Even though he was not yet born when the Shah was removed, he knew Iran to be much more oppressive since the Islamic Revolution. He wanted to get a tattoo of the Royalist symbol, the lion, because of his love of the Shah.
I asked whether his parents ask him to change his behaviour. He said that they were very supportive and that he was always a good boy by going to gym and playing [a sport]. He was always healthy and never had any alcohol.
He was working [at] that time, and working in a factory. Matters became worse and he was beaten in the street. They would not let him go. They said of his tattoos “I will remove [them] for you”.
Later they tried to remove them with an acid attack. He was driving [alone]. It was a very quiet street and there were roadworks, so he was driving very slowly. The street was very dark. The back door was opened in two seconds. The applicant was scared. The people were in an armed car and they stopped him. Their faces were covered. They threw something on him and he was scared so he put his hand up against his face to block it. The substance was acid. It went on his right hand and on his head and side. Scarring in these areas of the body was evident in the hearing.
They did not manage to get the acid on the lion tattoo [because] he was blocked by the car seat.
This was the first time anyone had approached him aggressively in his vehicle with violence.
I asked how the authorities would know that it was him in his car. He said the authorities had stopped him many times and they knew it was him.
The acid went into his eyes. He was very lucky he did not lose an eye – the ambulance took him to hospital. They washed his eyes.
The injury was on his hand, shoulder, side, neck and head. When the police were called they said there was nothing left and there was no container left at the scene.
He told his current girlfriend a wrong story and that he did not want to be asked about it. He said he was playing as a child with a cooking stove. He did not want to talk about it and be judged and blamed. He was not a bad person at all. He is going to talk to her about it later.
When he was treated for his injuries he received eye treatment, dressings and plastic surgery. He needed special clothing. His eye required stitches in order to be able to close his eye in the future. That eye is always red to this day. Occasionally the vison is not clear.
His family paid for his hospital treatment. He went back and forth to hospital for months for treatment.
After the attack his personality became very quiet.
He had more trouble after that. He could prove nothing to the regular police because Basij was involved. There were no witnesses. While ‘normal people’ would get very angry about these sorts of abuses, nothing stops the cooking up of allegations against everyday people.
He did not know who invented the allegations against him but he was sent to a court with a Basij judge. The allegation was that he was a rapist. They said that he raped a victim in the car. He said that he was in fact unable to see. A male and a female were to give evidence about him but they did not in fact appear in court.
Ultimately the allegation and notation of the inability to prove it were put in a public notice in a newspaper. His friend obtained this for him. His detention was in poor conditions with people in many bunks per cell, drugs being taken and fighting. He was not tortured. He was in [Prison 1] and [City 1] Detention Centre.
The public notice in the newspaper said that he was a rapist and in jail.
I asked about his release and he said his name was called on a public address system and he was ordered to come to the office. They sent him to a doctor. He was tested for a DNA sample in respect of the rape allegation. The result he said was to leave jail.
He did not have a lawyer – this was not allowed, except for a legal aid lawyer.
The family had to sell their [vehicle] to pay for his legal fees.
The allegations even though they had been aired in the newspaper could not be proved and after two or three years in jail he had to be released. He had no means of keeping count how long he was in prison because of the conditions. It was an indefinite holding period.
He decided had to get out of Iran. He stayed for a long period at his parents’ home without leaving the building.
The Basij were having a conflict with another group and were being attacked by unnamed men who hid their faces. CCTV was used to check who they were and the applicant was suspected as being one of the perpetrators because his build and appearance. This was a false claim. They approached his house and his father rejected the allegations. The man making the claim said he did not want to check the footage and sent him to [City 1] Detention Centre. He was there briefly and was released – his father paid bail. His father advised him to run away from Iran as they were trying to kill him.
He arranged for a passport - he thinks around IRR10,000,000 was needed for a bribe, which in today’s exchange rates amounts to about AUD370.[1] He eventually departed by air and got through the airport without being looked at. Then he went by boat from [Country 1] for Australia and was taken to Ashmore Reef. He was taken to Darwin. He has not changed his evidence since arrival and what he told the department in 2013.
[1] >
The applicant said that 10 years later the Basij were still calling his parents and his brother asking about him. The family tells them that they cannot find the applicant.
The Tribunal discussed the most recent DFAT country report[2] on Iran with the applicant, and in particular these passages:
Atheists and Secular or Non-Practising Muslims
2.99
In-country sources told DFAT many younger and wealthier Iranians, particularly in the major cities, are secular; a majority of the population does not attend mosque. Alcohol consumption is common among the youth. Official sources told DFAT that, despite government laws, religion was a private matter —beyond the expectation that people do not eat in public during the Muslim holy month of Ramadan or hold parties during the mourning months of Muharram and Safar - how one wished to observe Islam was an individual choice and was not a matter for the state. DFAT understands many Iranians do not observe Ramadan strictly, including by eating, drinking liquids and smoking at home. Most restaurants are closed during the day in Ramadan, although many (especially in Tehran) reportedly serve food discreetly. Those caught eating in public during Ramadan run the risk of arrest and prosecution.
…
2.101
Those who publicly renounce Islam face apostasy charges (see Atheists). According to local sources, atheists are discreet about their non-belief beyond their close family and friends. Unless they widely publicise their non-belief, atheists are unlikely to come to the attention of the authorities. Atheists from conservative families might face familial pressure and potential ostracism if their atheism were revealed, however would generally not be subjected to physical harm. Sources told DFAT that atheists from more liberal families and parts of the country, like north Tehran, would face no such pressure
[2] DFAT Country Report on Iran, 24 July 2023
He said he was on a watch list because he was treated like an enemy - he was not following Islam and the royalist emblem tattoo made him an enemy for so many things , including this and the false allegation.
He had attended [protests] in Melbourne and was supportive of the democracy movement symbolically headed by the former Shah’s son, Reza Pahlavi, Crown Prince of Iran. He had posted in support
Ms [A]
The applicant’s partner gave corroborative oral evidence in person. She believed that the applicant’s life would be at risk if he was returned to Iran.
[Ms A] said that the applicant was not a Muslim and his political views were anti-regime. He had a positive view of how Iran was before the Islamic revolution.
She said her partner was reluctant to talk about his experience because of the trauma involved. He had experienced great stress in the application process and he tried to shelter her from stress.
Post hearing submission
The applicant made a post-hearing submission which included the following:
·Statement of [A] dated 3 August 2023
·News articles and tweets
·His social media posts
·Posts and tweets regarding Majidreza Rahnavard
The applicant’s representative made the following description of the matter on 25 August 2023 (as edited for relevance by the Tribunal):
[Mr B] was born in Shahr-e Rey, Iran. During his youth he preferred to behave in ways that were identified as ‘western’. This included listening to loud music, wearing fashionable clothing, driving a sports car, and going out with his girlfriend, and having tattoos on his body.
[Mr B]’s tattoos represented his “love of the former Iranian Shah, Mohammad Reza Pahlavi”. He learnt about the former Shah from his parents and read about him. He believed that Iran was a great country under the Shah and opposed the Islamic Republic regime.
After obtaining a large tattoo of a lion on his [body part], [Mr B] attended a public swimming pool to participate in rehabilitation activities. He believes that this tattoo was reported to the Basiji. He was subsequently arrested and tortured by Sepah, who warned him to remove the tattoo. [Mr B] did want to remove the tattoo and did not take the threat seriously.
In 2006 [Mr B] was attacked by Sepah officers and had acid thrown over his back and face while he was driving in [City 1]. As a result of this attack, he spent a significant amount of time in hospital and underwent a number of surgeries.
Following this attack, [Mr B] was arrested and falsely accused of sodomy and homosexuality and taken to prison for approximately 2.5 years. After his release, he was required to report to Sepah every week for a significant period of time. He was also beaten and threatened regularly.
In approximately 2013 [Mr B] was again arrested on false charges of clashing with the Basij and Sepah, and taken to prison. He was released after approximately one month when his father provided the deed to the family home to secure bail. [Mr B] then fled Iran to [Country 1], and then travelled to Australia by boat arriving on [date] April 2013.
During his time in Australia, [Mr B] has continued to obtain tattoos representing his reverence for Mohammad Reza, including a representation of the lion and sun emblem on his [body], and a lion and crown on his [body]. He has also posted several times on social media platforms regarding his anti-regime, pro-Shah political opinion, and has attended a protest in Melbourne in January 2023 in support of Iranian protesters following the death of Mahsa Amini.
Summary of claims
[Mr B] claims protection under s.36(2)(a), and in the alternative, s.36(2)(aa), of the Migration Act 1958 (Cth) (Migration Act)
[Mr B] meets the definition of a refugee pursuant to s.5H of the Migration Act as he has a well-founded fear of persecution in Iran based on:
His actual or imputed political opinion in opposition to the current government of Islamic Republic of Iran and the Supreme Leader; and Membership of particular social groups (PSG’s) being:
Ø Iranians who prefer to act in line with values espoused by Western countries, and who have become Westernised;
Ø Iranians who have tattoos;
Ø Iranians who have tattoos representing the former Shah, Mohammad Reza Pavlahvi, and display anti-government, anti-Islamic Republic sentiment;
Ø Iranians whose conduct is considered in contravention of the Islamic Penal Code;
Ø Iranians who have renounced or no longer follow Islam;
Ø Iranians who have been charged with criminal offences;
Ø Iranians who have previously come to the attention of Iranian authorities;
Ø Iranians who have participated in protests in Australia against the Iranian regime;
Ø Iranians who have posted anti-Islamic Republic messages on social media platforms;
Ø Iranians who are imputed to be bisexual or homosexual;
Ø Failed asylum seekers/returnees from Western countries who have previously come to the attention of authorities; and
Ø Failed asylum seekers who have departed illegally and/or when they were on bail.
[Mr B]’s protection claims should be considered on an individual and cumulative basis.
[Mr B]’s fears are genuine and supported by his own evidence and relevant and credible country information. Throughout the SHEV application process, [Mr B] has provided significant evidence in support of his core claims and a detailed explanation as to why he fears returning to Iran.
The risk of harm to [Mr B] amounts to serious harm in that he faces most, if not all, examples outlined in s 5J(5) of the Migration Act including a threat to his life or liberty, significant physical harassment and/or ill-treatment, and a threat to his capacity to subsist, denial of basic services and/or denial of capacity to earn a livelihood.
The s 5(1)(a) Migration Act reasons as outlined in paragraph 26 of these submissions are the essential and significant reasons for the persecution. Further, the persecution involves systematic and discriminatory conduct.
[Mr B]’s fear of serious harm is well-founded, as illustrated by the relevant and credible country information discussed below.
Moreover, as the persecution would be perpetrated by the authorities and the government of Iran there are no effective protection measures available.
The risk of serious harm pertains to all areas of Iran, and there is nowhere to which [Mr B] could relocate to escape the risk of serious harm. Section 5J(1)(c) does not act as a barrier to [Mr B]’s application for protection under s 36 of the Act.
Complementary protection
Alternatively, if [Mr B] is not found to meet the definition of a refugee, it is our submission that he is owed protection obligations pursuant to s36(2)(aa) of the Migration Act as he faces a real risk of significant harm if he is returned to Iran.
[Mr B] does not have a right to enter a third country, and as the potential perpetrators of the harm would be the authorities [Mr B] cannot relocate within Iran. Further, the risk faced by [Mr B] arises as a direct result of the grounds detailed in paragraph 26 of these submissions, and therefore is not a risk faced by the Iranian population generally.
Findings of the Department Delegate - 10 July 2018 (2018 decision)
We note that in the 2018 decision the Delegate found the majority of [Mr B]’s claims not to be credible. It is our view that the Delegate could not have made such a finding with sufficient confidence that he did not have to consider the possibility that claimed past events did occur, in accordance with the ‘What if I am Wrong?’ test in MIMA v Rajalingam3 detailed in paragraphs 42-46 of these submissions.
The Delegate did not find the following claims to be plausible4:
[Mr B] chose to go swimming at a pool in an ultra-conservative area he knew was frequented by Sepah and Basij where his tattoo could be seen.
That his lion tattoo is the crest for the former Shah or has a comparable likeness.
That it is not allowed for men to wear a t-shirt while bathing in Iran, and therefore that he would not cover a tattoo that would be risky to display at a public pool frequented by the Sepah and Basij.
That [Mr B] was subjected to interrogations and beatings every week for about two years due to his tattoo.
That the Sepah were responsible for the acid attack on him.
That the Sepah published the newspaper article in an attempt to defame him or create a ruse to disassociate themselves from the attack, or that it was published for any reason other than to appeal for witnesses and victims to come forward in a case regarding a serial rapist.
That the charges of kidnapping and rape were brought about falsely by the Sepah in an attempt to frame him.
That the applicant was again arrested and charged with further crimes as the Sepah had a new plan to frame him after their original false charges did not result in him being jailed.
These findings fail to take into account the relevant and credible country information on some of these issues which was available at the time, and which should have led the Delegate to consider the possibility that he was wrong. Therefore the Delegate was in error in not considering at all whether he was wrong, and [Mr B]’s story was in fact true.
We address the alleged implausibility of [Mr B]’s claims, and some contradictory country information, below.
Acid attack
There is some country information available that suggests it would have been possible for the Iranian authorities to carry out an acid attack on [Mr B]. ACCORD reported in 2018 that the Basij had the capability to use motorcycles in their missions as they “undergo training in special tactics such as the use of bespoke weapons and motorcycles to suppress unrest”
A 2017 Alarabiya News calls out the Basij as the “(a)cid attacking foot soldiers of the Iranian regime” who act out “the role of morality police, they prowl the streets of Iran enforcing a code of conduct”. The article goes on to say that where acid attacks are concerned the Basij morality squads often use motorcycles to carry out these attacks. While this article focuses on a spate of acid attacks on women, it nevertheless forms part of the evidence to be taken into account when deciding whether [Mr B]’s claims were plausible. Further, these accounts show that the Basij are involved in these same types of actions when it comes to policing the dress and morality code in Iran, and therefore they had the experience in, and the capacity to, carry out such an attack.
There are numerous other articles confirming the existence of acid attacks in Iran, predominantly against women who violate the dress and morality code. Further, it must be considered that reporting on such attacks is strongly discouraged by the Iranian authorities through use of significant punitive measures, such that the numbers or details of these attacks may not be correctly reflected in the media or in available country information.
Paying a bribe to facilitate departure
The Delegate found [Mr B]’s claim that he was able to depart Iran after paying a bribe to have his name removed from a ‘do not travel’ list to be implausible. While recent country information details the difficulties with such a claim, contemporaneous country information supports [Mr B]’s story:
In a 2013 report published by Norway: Landinfo – Country of Origin Information a source from a Western Embassy stated that he “did not consider it possible to exit the Imam Khomeini International Airport with a forged passport, but would not rule out the possibility of a person being able to bribe his way out of the airport - though the price would probably be high. The source indicated that the price could be as high as 8-10,000 Euros. It was added that the source considered that the right connections were also important if one was to bribe one's way out of the airport. When asked if an average Iranian could pay the necessary bribe, the employee commented that, "Everybody has connections in Iran".
In the same report, a source from a different Western embassy stated that: “Concerning the issue of bribery in Imam Khomeini International Airport…[…] there are easier ways to leave Iran illegally and (he) pointed to the land border with Turkey. The source explained that security measures are efficient and air lines are strict on control of documents, but added that anything is possible in Iran. The embassy would not rule out that a person could bribe his way out of the airport in Iran.” The possibility of a person bribing airport officials was also acknowledged in a 2009 report by the Danish Refugee Council.
Tattoos
In reaching the finding that [Mr B]’s claim of being harassed, interrogated and beaten regularly by Sepah because of his tattoo was implausible, the Delegate failed to properly consider all of the tattoos, the political nature of them, and the potential for them to contravene the Islamic Penal Code.
A review of the transcript from this interview does not reveal any request from the Delegate to see [Mr B]’s tattoos. We note there was one point in the interview where [Mr B] made reference to having “added to it as well” when he was being questioned about the tattoos, however the Delegate chose not to pursue this any further. This showed a lack of curiosity and an inadequate investigation into the primary basis for his protection claims.
Further, the Delegate disregarded relevant country information that was cited in the decision itself from ACCORD in 2015 which quoted an expert in Iranian law who stated “a man who disrespected social mores by among other things, having tattoos, would be ‘arrested on a regular basis by the police and harassed until he ceases defying the norms”.(emphasis added).
Other country information available at the time also supported [Mr B]’s claims that he was regularly harassed and beaten by the authorities. The 2006 US DOS report stated: “According to a 2004 HRW report, the government's use of plainclothes security agents to intimidate political critics became more institutionalized since 2000.They were increasingly armed, violent, and well equipped, and they engaged in assault, theft, and illegal seizures and detentions.… there were numerous credible reports that security forces and prison personnel tortured detainees and prisoners”.
The US DOS report also stated that: “Many police officers were also corrupt. Civilian authorities did not fully maintain effective control of the security forces. The regular and paramilitary security forces both committed numerous, serious human rights abuses”.
Real chance and the ‘What if I am wrong?’ test
The country information available at the time of the 2018 decision should have raised questions in the Delegate’s mind as to the strength of the finding that [Mr B]’s claims were implausible. This questioning required the application of the ‘What if I am Wrong Test’ such that he should have considered the possibility that claimed past events were true.
In coming to a decision, the Delegate was required to assess whether there was a real chance that, if [Mr B] was returned to Iran, he would be persecuted for one of the reasons claimed. As noted in the decision of the Full Federal Court in MIMA v Rajalingam (1999) 93 FCR 220 (Rajalingham) the approach taken to past events differs from the approach which should be adopted when assessing the likelihood that particular events will occur in the future. In Rajalingam, the court commented that where a decision maker is “uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution”. (emphasis added)
The court in Rajalingham refers to the High Court decision of Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 in which McHugh J stated that even a ten per cent chance that an applicant will face persecution for a Convention reason may satisfy the relevant test.
Further, we note the comments of the Court in Rajalingham that:
“Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found."
We note that in the 2018 decision the Delegate rejected the possibility of the harm sustained by [Mr B] being as a result of a s5J(1)(a) reason. It is our submission that were the Tribunal in this case to come to the same conclusion he would fall into error as such a conclusion cannot be arrived at with sufficient confidence. [Mr B] has been consistent and credible in the evidence he has provided about the harm he experienced at the hands of the Iranian authorities, and the reasons for that harm. In these circumstances, the possibility that alleged past events did occur as detailed by [Mr B] must be considered. If this possibility is considered, it is undeniable that [Mr B] faces a real chance of serious harm if returned to Iran.
Findings of the Department Delegate - 9 August 2022 (2022 decision)
We note that in the 2022 decision the Delegate again found the majority of [Mr B]’s claims not to be credible. We reiterate our view that the Delegate could not have made such a finding with sufficient confidence that he did not have to consider the possibility that claimed past events did occur, in accordance with legal test as articulated in Rajalingham.
The Delegate made the following findings:
Ø[Mr B] experienced harassment by members of the Basij while in Iran due to his clothing style, his car, the playing of music and being in public with his girlfriend.
Ø[Mr B] exaggerated the nature and extent of his interest in the Shah in order to justify why he obtained tattoos.
Ø[Mr B] had six tattoos done in Iran, and the remaining eight were done in Australia.
The Delegate found the following claims to be implausible:
Ø[Mr B] was targeted and harmed by the Iranian authorities because of his refusal to remove the lion tattoo [based] on the following assertions being implausible:
ØThat he exposed his lion tattoo at a public swimming pool in 2004.
ØThat he was repeatedly arrested, warned and tortured by Sepah on a weekly basis from 2004 to 2006 because of his refusal to remove the tattoo.
ØThat he was attacked with acid in 2006 after refusing to remove his lion tattoo.
ØThat the Iranian authorities falsely accused and convicted of clashing with the Basij and Sepah in 2013.
ØThat the Iranian authorities would be continuing to threaten [Mr B]’s family for nine years after he left because of a lion tattoo.
ØThat [Mr B] is the subject of the newspaper article provided as evidence.
ØThe documents provided by [Mr B] such as legal documents are not genuine.
Ø[Mr B]’s documents were not confiscated by the Iranian authorities in 2013.
Ø[Mr B] legally departed Iran on a genuine passport issued in his name.
ØThe Shah related tattoos do not constitute a genuine expression of a strongly held anti-Iranian government/pro-former Shah political opinion.
Ø[Mr B] would not face harm upon return to Iran on the basis of having tattoos.
Ø[Mr B] has not engaged in any conduct that would be considered to be in contravention of the Islamic Penal Code.
Ø[Mr B] will not face serious harm on the basis of being a failed asylum seeker returning from a Western country.
As asserted in relation to the 2018 decision, the findings in the 2022 decision fail to take into account the broadly consistent testimony of [Mr B], relevant and credible country information on some of these issues which was available at the time, and the possibility that the delegate was wrong in finding these claims implausible. The Delegate failed to engage in reasonable speculation, and this failure constitutes an incorrect interpretation of the relevant law, or an incorrect application of the law to the facts as found in this case per Rajalingham.
Credibility
We refer to and rely on the submissions regarding credibility detailed in the submissions dated 14 April 2022, copied here for convenience.
We note that in the evidence provided by [Mr B] since his arrival in 2013, regarding events that took place between 2004 and 2013, there have been some inconsistencies and errors in the evidence regarding the details and the chronology of past events.
We submit that throughout the interviews with Delegates of the Department on 29 March 2018 and 9 March 2022, an unreasonable amount of pressure has been placed on [Mr B] to provide evidence as to the precise details of these events. This evidence pertains to a period of 8 years where he was harassed, persecuted, detained and tortured many times.
There is a significant amount of information provided in the Department’s Policy Advice Manuals (PAM’s), the ‘Guidelines on the Assessment of Credibility’ prepared by the Administrative Appeals Tribunal(AAT) and many other sources which provide a basis for understanding why [Mr B]’s memory of these events is not reliable and should not be the basis upon which to make an adverse credibility finding.
For example, the Department PAM relating to the Protection Visa Processing Guidelines states that:
“Contradictions, inconsistencies and omissions might appear in the information presented by an applicant. For example, irregularities might appear within an applicant’s account of events….An inability to give a precisely accurate or consistent account of past events should not lead to an automatic non-acceptance of a particular claim. An applicant may forget specific dates, locations, distances, events and personal experiences due to a range of factors such as trauma or a substantial lapse of time. Discrepancies in an applicant’s claims would have to be quite serious for an officer to find that the claims are not credible. Care should also be taken not to join a series of minor inconsistencies together to not accept an applicant’s claims”.
These guidelines also require the Delegate to consider whether the identified inconsistency, contradiction or omission concerns information that is material to the application. While [Mr B]’s history of persecution is an important element of his case, the relevant question is whether [Mr B] has a present fear of a risk of harm in the reasonably foreseeable future. Further, any finding about what occurred in the past will not be sufficient to satisfy the real chance test as the essence of that test is looking to the future.
[Mr B] has been consistent in his claim that he was detained, interrogated and harmed by the Iranian authorities and the inconsistencies relate only to the precise details of this harm and chronology of events. It is our submission that any such inconsistency is not material to the finding that he has a well-founded fear of persecution if he is returned to Iran in the future.
Further, we note that in accordance with PAM “a decision as to whether an applicant’s claims are credible or not should not be based on an officer’s subjective belief or ‘gut feeling’ about whether an applicant is telling the truth or not.”
Mitigating circumstances
There are obvious mitigating circumstances which should be given significant weight when assessing any perceived credibility issues. The PAM states that “(t)here may be situations in which credibility concerns and behaviour arise that cast doubt on the credibility of an applicant’s claims. However, in assessing the credibility of the person’s claims in these situations, officers also need to be mindful of any mitigating circumstances that might exist and of the impact that those circumstances may have on the person’s behaviour or their capacity to present claims.
One of those mitigating circumstances is mental or emotional trauma, and according to the PAM “(d)ecision makers should be mindful of how trauma may impact an applicant’s engagement at interview and recollection of events.” Further, “(s)uch experiences may also impact adversely on their capacity to provide testimony of these events…(a)n applicant may not be able to remember all the details of their personal history or reconstruct the chronology of particular events. However, they may remember events that affected them most in emotional or physical terms but not the time sequence. Such confusion and forgetfulness do not necessarily imply that they are not telling the truth.”
A report by the Blue Knot Foundation called ‘The Truth of Memory and the Memory of Truth’ explains the impact of trauma on people’s memory. The report makes the following comments about the way individuals who have experienced trauma may remember past events:
“Neuroscientific and other research confirms that memory is not a single entity. Rather it comprises different types of memory which do not relate solely to conscious recall. The different types of memory are associated with complex neural networks and are stored in different areas of the brain. This has major implications not only for our understanding of memory, but for our understanding of the challenging experience of traumatic memory, the ways in which it is expressed, and ways in which it can be resolved.
…
Traumatic memory tends to return in fragments.
…
Traumatic memory is implicit and expressed as `jumbled fragments’ rather than as a coherent verbal narrative. Current research establishes that memory is not `a discrete phenomenon, a fixed construction, cemented permanently onto a stone foundation’. The process of recall involves a degree of reconstruction, and the way we are feeling at the time the memories are recalled can influence both what and how we remember. This is the case for recollection in general, and certainly in the context of recollection of trauma: the accuracy of memory for highly traumatic events depends on the socioemotional context in which they occur’.
This expert research into memory functioning explains the way that memory can fluctuate for individuals who have experienced trauma, and that can cause individuals to be able to remember some parts of their lives in a specific and detailed way whilst other parts are recalled in a more vague and incoherent fashion.
In light of the information provided above, the nature of [Mr B]’s trauma, and the fact that the recollections have been provided in a highly stressful and re-traumatising situation, the evidence [Mr B] has provided should be considered coherent and consistent, and should not raise any questions as to his credibility.
Further, [Mr B] should be given the benefit of the doubt in any assessment of his credibility, as he has satisfied all conditions outlined in the PAM including making a genuine effort to substantiate his claims and providing generally coherent and plausible statements regarding his history in, and the reason he fears returning to, Iran.
Assessment of whether [Mr B] is a refugee: s36(2)(a)
[Mr B] clearly satisfies the definition of s5H of the Act as he is outside his country of nationality and, owing to a well-founded fear of persecution, he is unwilling or unable to avail himself or herself of the protection of that country.
Claims relating to actual or imputed political opinion
[Mr B]’s political opinion is expressed through the numerous tattoos he has on his body indicating the reverence he holds for the former Shah of Iran, Mohammad Reza Pahlavi (Mohammad Reza). The tattoos include [details deleted]. The Shir o Korshid is a “Lion and Sun, a coat of arms that graced the Iranian flag from the mid-19th century until the 1979 Revolution when it was replaced by a stylized version of the word Allah (“God”) written in Arabic script”.
We note that in accordance with the Department PAM a political opinion may be “directly expressed or imputed from dress, music or behaviour”, and “a standard of reasonableness is expected in how and when a person chooses to express their political opinion”.
In 2019, the Guardian reported on Iranian tattoo culture, and an anonymous Tehran bureau correspondent explained that tattoos are a symbol of resistance against the Iranian regime: “It is certainly not simply a fashion choice for everybody, he adds. ‘For some Iranians it’s a way to show that their body belongs to them, apart from the theocratic state and institutionalised religion. It’s a silent act of resistance. You can censor books, you can ban films, but you cannot erase a tattoo very easily.’
The same journalist notes that the Shiro Khorshid has been popular in Iran since “at least the 12th century”, is a symbol of Iranian identity, and only “since the revolution become associated with the deposed monarch Mohammed Reza Shah Pahlavi and his dynasty. After the revolution, the new government of Ayatollah Ruhollah Khomeini systematically eradicated it from public spaces and government buildings, replacing it with Islamic iconography”.
The reporter noted that wearing a removable piece of jewellery bearing the Shiro Khorshid image was ‘illegal’, and an act of subordination against the current Iranian regime. It may therefore be inferred that possessing a permanent tattoo representing Mohammad Reza would be highly challenging to the regime.
We note that in the most recent United States Department of State (USDOS) country report on Iran(2020) it is stated:
“The political crimes law defines a political crime as an insult against the government, as well as ‘the publication of lies. ’Political crimes are those acts ‘committed with the intent of reforming the domestic or foreign policies of Iran, ’while those with the intent to damage ‘the foundations of the regime’ are considered national security crimes. The court and the Public Prosecutor’s Office retain responsibility for determining the nature of the crime.”(emphasis added)
We note there have been significant protests in Iran against the Islamic republic regime over the last 12 months, and there have been an alarming crackdown on protestors. Human Rights Watch (HRW) has called on the UN Human Rights Council to establish an investigation into Iran’s crackdown on protests from September 2022, noting that 434 deaths being investigated by various human rights groups as at the date of writing.
HRW has expressed its grave concern over the excessive and let half or ceused by Iranian security forces as well as the prosecution of thousands of protesters in grossly unfair trials which regularly relied on coerced confessions:
“On October24, Masoud Setayeshi, the judiciary spokesperson, told media that authorities have started prosecuting thousands of protesters. These trials, which are often publicized through state media, fall grossly short of international human rights standards, with courts regularly using coerced confessions and defendants not having access to the lawyer of their choice. As of November 21,
Amnesty International has collated evidence that Iranian authorities are seeking the death penalty for 21 people involved with recent protests:
“The Iranian authorities are seeking the death penalty for at least 21 people in sham trials by Revolutionary Courts designed to further repress the popular uprising that has rocked Iran since September 2022 and to instil fear among the public. The 21 individuals have been referred to trial on capital charges in connection with protests, amid disturbing calls by Iranian officials to rush proceedings and execute them in public.
….
Mizan Online named six men who face charges that carry the death penalty, while the identities and the charges against the remainder remain unknown to Amnesty International. Based on information publicly available, the six men named are accused of involvement in separate incidents, strengthening concerns that the authorities are resorting to group show trials to further instill fear among the public and quash the ongoing uprising.”
The arrests of thousands of protestors has been condemned by UN Experts who have called for Iranian authorities to stop indicting people with charges punishable by death for participation in peaceful protests.
One of the men executed was Majidreza Rahnavard, who was accused of fatally stabbing security force members during the protests. During his trial he was not allowed to choose his lawyer, challenge the evidence against him or ask for a public trial. Activists say he was forced to confess under torture. There were unconfirmed reports online regarding Majidreza’s arm being broken or burnt prior to his execution. Karim Sadjadpour, senior fellow in the Middle East Program at the Carnegie Endowment for International Peace, made the following comment on Twitter:
“Before the Iranian regime executed Majid Rahnavard last week for “waging war against God”, they broke his arm. Why? He had a tattoo of Iran’s historic pre-revolutionary national symbol, the Lion and the Sun. Patriotism is kryptonite for the Islamic Republic.”
The clear visual representation of [Mr B]’s anti-regime political opinion in his tattoos will place him at risk of serious harm should he be returned to Iran, particularly in the current circumstances where the regime is conducting sham trials and executing people who dare to protest.
Claims relating to Westernised appearance and behaviour – MPSG
The Department of Foreign Affairs and Trade (DFAT) 2023 Country report on Iran states that DFAT is not aware of men who have Western style appearance being targeted by authorities. However, past experiences and the current circumstances in
Iran lead [Mr B] to believe he will be targeted for his Western appearance and behaviour, and this is confirmed in other sources.
In a 2018 compilation of country of origin information regarding Iran, the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) details numerous sources which indicate that the Iranian authorities continue to target people who have been influenced by Western countries and values. An April 2017 article in Radio Free Europe/Radio Liberty is cited which states that the ‘principalists’ or ‘hardliners’, the political group congregating around the Supreme Leader, are “guided by an unswerving belief in the ideological principles of the 1979 Islamic revolution…(t)hey are above all suspicious of ‘cultural invasion’ – what they term Westoxification – ‘Western social influence’ […] (it) must be resisted at all costs”.
The ACCORD report cites a June 2017 article in The New York Times which states that “since the 1979 revolution, Iran’s clerics have codified into law hundreds of lifestyle regulations’, meant to ‘keep their flock on the right path”. It also refers to a December 2017 report from a British charitable organisation called Freedom from Torture that analysed cases of torture in Iran. They found that 9 per cent of the people interviewed “reported being detained for various transgressions of expected social or moral behaviour in Iran...(t)hese included drinking alcohol in public, being partially dressed in public, or other violations of Islamic dress-code, listening to Western music and hosting a private party with music and alcohol”.
In a recent decision of the Tribunal in October 2022, the risk to the applicant was found to be increased by his status as a failed asylum seeker, particularly one from the West with Western-style clothes:
“The country information strongly indicates that the current attitude of the Iranian regime towards actual or perceived dissenters has not soften in recent times and that Iranians returning from abroad continue to be subjected considerable scrutiny and that this attitude is heightened when failed asylum seekers are from Western countries or have a strong Western non-conformist dress code, which given the applicant’s Western-style of dress and appearance at the hearing would be heightened in his case.”
Claims relating to tattoos – MPSG’s
The 2023 DFAT report states that tattoos are common in Iran and are not a basis for being targeted by the authorities. However to make such an assessment in this case would be to overlook the nature of [Mr B]’s tattoos, as well as recent, credible and contradictory information suggesting that tattoos in general are not always tolerated in Iran.
In 2018, a report in Deutsche Welle confirmed that tattoos are perceived to be Western, and can attract harassment by the moral police: “Iranian state media often refers to Tattoos as a symbol of ‘Westernization’ or part of a Western ‘cultural invasion’ of Islamic society”
In 2019, the Guardian reported on the arrests of tattoo artists in Iran, and the manner in which tattoos are considered to be a Western symbol: “Tattoo artists are regularly arrested in Iran and sentenced to fines, lashes or even imprisonment. While there is no specific law against tattoos and they are not strictly forbidden in Shia Islam, the authorities strongly reject them as a western phenomenon harmful to Iranian values.”
While the 2023 DFAT report provides little detail around tattoos save for them being common in Tehran and other big cities, the 2020 DFAT report provides the following clarification on circumstances in which men may be targeted for violating the dress code: “…these were most likely the result of either over zealous enforcement by individual security authorities in particular locations (particularly outside of major cities) or because the individual had come to the attention of the authorities for other activities, particularly political activism”.
A 2017 article on the Iran Front Page new website was cited by ACCORD confirming the risks faced by those who have tattoos in Iran: “Many Iranians consider tattooing a disagreeable act; however, the country’s laws and religious rules don’t forbid it except in particular conditions. Based on their culture and customs, the majority of Iranians regard tattooing as an anti-value act. However, Iran’s law has not devised any punishment for this traditionally indecent behaviour. According to a Farsi report by Jomhouri Eslami newspaper, the only punishable tattoos are the ones that contain obscene or nasty images on the face or the visible parts of the body such as hands and arms. Those who have these types of tattoos will be charged of hurting public chastity.”
[Mr B]’s tattoos will likely be interpreted as representing his reverence for Mohammad Reza, and Iranian society prior to the Islamic Revolution. It is foreseeable that the anti-government, anti-Islamic Revolution message conveyed in [Mr B]’s tattoos may be perceived as nasty or obscene and would make him a target of the authorities and put him at risk of serious harm. The fact that he has previously come to the attention of authorities will further increase the likelihood that he will be targeted for these tattoos.
Claims relating to conduct in contravention of the Islamic Penal Code, renunciation or lack of adherence to Islam -MPSGs
[Mr B]’s tattoos are in breach of the Islamic Penal Code which prohibits offending or insulting Iman Khomeini and/or the Supreme Leader, insulting Islam, or any Prophet. Article 513 states that “anyone who insults the sacred values of Islam or any of the Great Prophets ”shall be executed; otherwise they shall be sentenced to one to five years imprisonment; and Article 514 states that “(a)nyone who, by any means, insults Iman Khomeini, the founder of the Islamic Republic, and/or the Supreme Leader shall be sentenced to six months to two years imprisonment”.
[Mr B] has numerous tattoos which clearly demonstrate his reverence for Mohammad Reza and Iranian society prior to the Islamic Revolution. In the article referenced above from the Guardian in 2019, the journalist reported that many local Iranians positively identify the Shir o Khorshid symbol foremost with nostalgia for pre-revolutionary Iran, and by association, with the Pahlavi family, and states “Mohammad Reza Pahlavi has become a repository for people’s pent-up anger and frustration, a canvas on which to paint a better version of Iran – even if it’s one that never really existed. It’s nostalgia as subversion”. It can be inferred that wearing or displaying this symbol is an act of resistance toward the Iranian regime and an insult to the Supreme Leader.
The 2020 USDOS report contains a number of examples of Iranians who have been imprisoned on charges of ‘insulting the Supreme Leader’ and also reports that conviction of ‘insults against the memory of Iman Khomeini and against the Supreme Leader of the Islamic Republic’ can attract the death penalty.
Further, [Mr B] will be at risk of harm in Iran due to his renunciation of Islam. The 2023 DFAT report states that while apostasy is not codified as a crime in Iran, it remains a crime under Sharia law, which is enforceable under the constitution. The report also states that “(b)oth moharebeh or ‘enmity against God’ and fisad fil-arz (corruption on earth) are codified in law and can include apostasy, according to the 2021 US Department of State Human Rights Report. According to the Iran Human Rights Documentation Centre, person can be found guilty of the crime of apostasy based on the testimony of two male witnesses, the knowledge of a judge or a confession.”
Claims arising from previous criminal charges and previously coming to attention of authorities – MPSG’s
Prior to departing Iran [Mr B] was charged with a number of offences including rape, sodomy, homosexuality, and kidnapping. He therefore is a member of particular social groups arising from these charges including people who have been charged with criminal offences, and people who have previously come to the attention of authorities.
The available country information clearly distinguishes those who have previously come to the attention of authorities as being at risk of detention at the airport upon return to Iran, and subsequent harassment, detention and punishment when committing lesser crimes against the Islamic Penal Code such as contravening the dress code. The 2023 DFAT report states 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.” (emphasis added)
It is reasonably foreseeable that [Mr B] would be at greater risk of being targeted in this way as result of his history of criminal charges, and therefore he is likely to be arbitrarily detained in an Iranian prison. The risks of serious harm in prison are well documented by country information sources. For example, in March 2022 Amnesty International reported on leaked footage from Evin prison in Tehran which “showed prison officials beating, sexually harassing and otherwise torturing or ill-treating prisoners.”
Further, a 2021 report of the United Nations (UN) General Assembly Secretary-General confirms the “repeated denial of adequate medical care in detention…(a)n alarming number of prisoners, in particular human rights defenders, prisoners of conscience, environmentalists and political prisoners, have become critically ill in prison, or have had serious medical conditions left untreated in detention”.
Claims arising from political activities in Australia including attending protests and posting on social media platforms
[Mr B] is at risk of serious harm if returned to Iran due to the messages he has posted on social media and his participation in a protest in Melbourne in January 2023.
In February 2023, the Australian Senate’s Foreign Affairs, Defence and Trade References Committee released its report on the Human Rights implications of violence in Iran throughout 2022. The Committee found the evidence of Australian residents being intimidated and/or threatened by the Iranian government in this manner both credible and “deeply concerning”. Further, the Committee expressed a high level of concern over the Australian Government’s failure to investigate whether Iranian authorities were monitoring social media channels to identify and target people in Australia who spoke out against the regime. This was of particular concern given evidence that such tactics had been used in other jurisdictions to facilitate violent reprisal.
The report also noted the “high level of concern within the Australian diaspora about potential monitoring of individuals on social media, as well as at rallies and protests held in Australia”. Such surveillance was confirmed in a number of reports on Australian news sites online.
An article in The Guardian Australia summarised some of the Australian Senate’s Foreign Affairs, Defence and Trade References Committee recommendations and findings, including that Iranian officials may be involved in monitoring and intimidation of people of Iranian descent who reside in Australia, stating:
“The chair of the committee, the Liberal senator Claire Chandler, wrote that its members were “deeply moved by the stories shared by witnesses and submitters”. She said Australia had not only a moral obligation to act but must also “protect Australians from the dangerous and threatening behaviour” of the regime.
…“The IRGC is a terrorist organisation and should be recognised as such,” the committee report said. “Doing so would not just send the right message, it would better empower agencies in Australia to place a greater focus on the IRGC’s activities and operations in Australia.””
Reporting on ABC News online further confirmed the monitoring and surveillance of former citizens in Australia:
“Several Australian-Iranian protesters have told the ABC about how informants often attend anti-regime demonstrations in Australia and film the participants. [Dr] Kylie Moore-Gilbert, an Australian-British expert on Islamic studies, agrees the domestic threat posed by the Iranian regime is real. "I have had some of my events monitored by Iranian individuals in a suspicious way who've asked questions of other Iranian audience members at my events that were also highly suspicious," she told Background Briefing. "There are Iranian intelligence and also Iranians who are sympathetic to the regime who could provide information or inform on their compatriots in Australia, even if they're not trained up members of the intelligence."
The risks faced by returnees to Iran by any social media posts or activities in Australia have been acknowledged by the Tribunal in a recent decision, where it was accepted that there was a more than remote chance of the online activities of the applicant surfacing, despite him not having many subscribers. The Tribunal noted at paragraph 80 of the decision that:
“The Tribunal finds that there is a real chance that the anti-regime content of the applicant’s social media activities would attract violent and humiliating questioning and a significant amount of time in custody and other significant maltreatment through interrogation. The Tribunal finds that this treatment would amount to persecution as it is serious harm, involving a threat to life and liberty that it is systematic and discriminatory. In view of the country information referred to above, the Tribunal is satisfied that there is the chance that the applicant may be of adverse interest to the Iranian authorities, even though he is not a high-profile influencer, blogger or activities holding conspicuous anti-government opinions, to be more than remote, far-fetched or insubstantial.”
In 2022 Article 19, an international group promoting freedom of expression, provided a legal analysis of Iran’s updated Penal Code, and drew attention to Iran’s criminalisation of political and other expression through social media. Their report states:
“Article 499 bis states that ‘anyone who insults Iranian ethnicities or divine religions or Islamic schools of thought recognised under the Constitutions with the intent tocause violence or tensions in the society or with the knowledge that such [consequences] will follow’ will be subjected to harsh punishments.”
…
ARTICLE 19 is also concerned under the provision and its notes nearly all means of dissemination through which the illegitimately criminalised expression may be conveyed, such as social media platforms, are considered aggravating elements and increase the prescribed punishments.”
Claims relating to imputed sexuality – MPSG
[Mr B] may be imputed to be gay or bisexual as a result of being charged with homosexuality and receiving a sentence of 100 lashes for this offence.
The PAM in relation to Gender and Sexual Orientation refers to this specific possibility by stating that “some applicants may raise claims relating to being gay or lesbian without actually articulating that they identify as bisexual. However, in some countries, while serious or significant harm may not explicitly be directed at bisexual people, it may be incorporated into harm targeted at gay or lesbian conduct and this may raise imputed claims based on being perceived to be gay or a lesbian.”
We note that the Islamic Penal Code criminalises same-sex sexual relations and punishments range from lashes to the death penalty. The UK Home Office (UKHO) reported in 2019 that “(b)ecause of a scarcity of reliable information it is extremely difficult to determine whether those charged and executed for same-sex conduct are in fact members of Iran’s LGB community or those who are being framed by the government as being gay”.
The UKHO goes on to detail the risk to Iranians who are perceived to be gay: “(i)n practice, Iran’s security forces – including police and the Basij [morality police] – rely upon discriminatory laws to harass, arrest and detain those they suspect of being lesbian, gay and bisexual….
This possibility that people can face arrest and punishment based on their perceived sexual orientation has also been acknowledged by the Department’s Country of Origin Information Services Section in a document titled “Common Claims: Iran” and states the following: “Some individuals have been arrested based only on a perception of their sexual orientation. They are sometimes subject to beatings or other abuse (sometimes including sexual abuse) whilst in detention. People accused of sodomy often face summary trials where evidentiary standards are not always met.”
Claims relating to failed asylum seeker status (MPSG’s)
While the 2023 DFAT report generally assesses failed asylum seekers to be at low risk of coming to the attention of authorities, we note that this is qualified by the words
“unless they were the subject of adverse official attention prior to departing Iran”.
In 2019 the AAT commented on a situation where someone may come to the attention of the Iranian authorities as a failed asylum seeker due to a lack of documentation, and thereby be imputed with anti-government political opinion:
“The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be imputed with an anti-government political opinion as a result. The available country information indicates that for a person to be returned to Iran without a valid Iranian passport it would be necessary for them to come to the attention of the Iranian authorities.”
There is a high likelihood that [Mr B] would come to the attention of authorities for a number of reasons including his lack of a valid passport. These include the adverse official attention he attracted prior to his departure from Iran, the fact that he departed Iran illegally while on bail and while subject to a travel ban, and the fact that he has visible tattoos which may be considered to be anti-government and in contravention of the Islamic Penal Code. We submit that there is a real chance that once he has come to the attention of authorities [Mr B] is at significant risk of interrogation, torture, arbitrary detention and threats to his life.
We note the decision of the Tribunal in October 2022 referred to above in paragraph 82 of these submissions, which confirms that failed asylum seekers from Western countries continue to be subject to considerable scrutiny. In that case the Tribunal stated:
“Having regard to the country information, the Tribunal considers that it is possible that Iranian authorities will discover the applicant’s’ [Social media 4] account while detained as a failed asylum seeker or forced returnee. The Tribunal also considers that there is a real chance that the Iranian authorities would be able to investigate and scrutinise the content of the applicant’s [Social media 4] account will upon his forced return to Iran in will lead his case to be examined in detail by one of the security agencies of Iran. Under robust interrogation, other social media activities have a real chance of coming to light which will escalate the likelihood and degree of persecution to be faced by the applicant.”
This decision is particularly relevant in [Mr B]’s case as he has many of the same risk factors including his Western appearance and style, his renunciation of Islam and apostasy, and his social media posts.
Cumulative test
The claims articulated in these submissions should be considered individually and cumulatively as discussed in the AAT Guide to Refugee Law:
“…it would be wrong to simply consider the individual circumstances put forward by an applicant, and accepted by the decision maker, as being grounds for a well-founded
Fear of persecution in the future, without considering those circumstances cumulatively. This is particularly so where an applicant claims that the aggregation of past incidents suggests that he or she was targeted for harm. In a complex case where an applicant faces multi-faceted risks which may interact and interrelate, a cumulative assessment requires an active intellectual engagement with the issues when considered cumulatively”.
It is our submission that once all claims articulated are considered both individually and cumulatively it is abundantly clear that there is a real chance that [Mr B] will suffer serious harm if he is returned to Iran.
Effective protection measures
The State is not willing or able to provide [Mr B] with effective protection in any part of Iran. He will not be able to access state protection because he fears harm from the Iranian authorities themselves, including the Islamic Revolutionary Guards Corp (IRGC) and the Basij paramilitary force. These organisations operate nationally and wield significant power. Iran does not have an impartial judicial system and there is impunity for these forces. This is well-supported by the relevant country information.
In 2021, the Secretary-General of the United Nations General Assembly has reported the following:
“Available information suggests that measures taken by State authorities to prevent human rights violations, or afford effective remedy, are largely non-existent or at best insufficient…(t)he climate of impunity is compounded by a lack of due process, threat of reprisals and pressure against lawyers….(r)eports indicate a general mistrust with regard to submitting complaints about violations, due to fear of reprisalsandobstaclestoholdingpublicservantsaccountable.Thelowconvictionrateof public officials acts as a disincentive for people to seek justice through official channels”.
Further, the 2023 DFAT report outlines the ways in which state protection is offered in Iran is often inadequate and corrupt:
•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. (para2.190)
•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. (para 2.194)
•In practice, the head of the judiciary is appointed by the Supreme Leaderand the judiciary leadership is under control of conservative hardliners. (para2.192)
•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 haven egligible legal training and are not independent.(para2.193)
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’. (para 2.194)
• 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. (para 2.195)
• Bribery of judges occurs. (para 2.196)
Complementary protection
[Mr B] is owed protection obligations pursuant to s36(2)(aa) of the Migration Act as there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Mr B] being returned to Iran, there is a real risk that he will suffer significant harm.
We note that the real risk test to be applied in this assessment is the same as the real chance test applied in Chan.90 According to the PAM, relevant factors for consideration include:
any evidence of past significant harm, or past activities giving rise to significant harm;
any evidence of intention to target the applicant such as the issuing of arrest warrants;
the laws and practices of the receiving country; and
the pattern of conduct shown by the receiving country in similar cases
An abundance of relevant and credible country information supports the assertion that if [Mr B] is returned to Iran he faces a real risk of significant harm, which may include torture, cruel, inhuman or degrading treatment, arbitrary deprivation of life and possibly the death penalty.
The risk of significant harm is one faced by [Mr B] personally, and not one faced by the general population.
Further, it is not reasonable for [Mr B] to relocate, and he cannot obtain protection from an authority in Iran as it is the Iranian authorities he fears. As detailed in the Country Information section below, the IRGC and the Basij are present in massive numbers throughout Iran.
Conclusion
It is our submission that, in light of the reasons and information detailed above, [Mr B] clearly meets the definition of a refugee as contained in s.5H of the Migration Act and therefore he is owed protection obligations pursuant to s.36(2)(a) of the Act.
Further, and alternatively, it is submitted that [Mr B] satisfies the complementary protection provisions in s.36(2)(aa) of the Act on the basis that there is a real risk that he will suffer significant harm should he be returned to Iran.
Findings

The Tribunal found the applicant to be broadly credible in his written and oral evidence. He has maintained an overall level of consistency in his claims over a protracted period.
I am prepared to accept that he is in his [age], a nominal Shia Muslim, has a deep distrust of Islam and was and is a non-conformist in Iranian society, being interested in free expression of music, body art and in his social views on dating a woman or women in public places.
There are a number of claims that the Tribunal has little more to go on than the applicant’s own word and certain documents that are many years old and are not verified, such as a claimed record of offences that he allegedly committed and was allegedly imprisoned for a period of years. Although the Tribunal does not positively disbelieve that Basij attacked him with acid, had him falsely imprisoned and accused of rape and other offences, it does not in turn find that weight of evidence to be such that it can with any level of confidence conclude that the events indeed occurred.
Failed Asylum Seeker/Forced Returnee
As the Tribunal is finding the applicant to be a refugee in this matter, it will not be making exhaustive findings about each of the nexus reasons mentioned under paragraph 5J(1)(a) raised in this application. In this decision, the Tribunal has confided its findings that the applicant faces a well-founded fear of persecution based on him belonging a membership of particular social group, namely as a failed asylum seeker or forced returnee, cumulatively considered, should he be returned to Iran.
The Tribunal notes that the delegates’ decision record(s) accepted the applicant belonged to a particular social group, namely, as a member of failed asylum seekers, but did not accept the applicant’s claim, either separately or cumulatively, amount to him facing a real chance of serious harm or a real risk of significant harm based on that membership.
For the following reasons, the Tribunal departs from the delegate’s conclusions. The applicant asserts that he will come to the attention of authorities on arrival as a failed asylum seeker or forced returnee as these laws are selectively enforced against those with diverse political or religious positions which will be seen as anti-Islamic and against the Islamic Republic of Iran, which will in turn have him persecuted for one of these reasons. It is further asserted that he will be interrogated and then imprisoned in one of Iran’s prisons once his anti-religious and anti-government convictions are identified.
The applicant’s online activities and attendance at protests in Australia are outlined earlier.
The question for the Tribunal is whether the applicant will come to the attention of the Iranian authorities on or after his return to Iran as a failed asylum seeker, and so be accused of holding anti-government political opinions, whether it is imputed or actual, which will lead to a real chance of serious harm.
The most recent DFAT report states that the authorities pay little attention to failed asylum seekers on their return to Iran. Iranians have left the country in large numbers since the 1979 revolution, and authorities accept that many will seek to live and work overseas for economic reasons. Those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departureand why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour, but may take longer where the returnee is considered evasive in their answers, and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process.
More saliently to this matter, the DFAT report then states:
A well-placed source was not aware of voluntary returnees being prosecuted for criticising the Islamic Republic, converting to Christianity or proselytising while abroad on their return to Iran. As far as DFAT is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
There is available country information from other sources which undermine the reliability of this DFAT claim about the authorities not checking the social media accounts of forced returned.
According to the Swiss Refugee Council (SRC) report, a contact person employed at Tehran airport advised SRC that people who did not depart illegally but were deported back to Iran: will all be interviewed and their case will be examined in detail. If a deported person did not participate in any propaganda against the Islamic Republic and did not assist foreigners involved in such activity, then he/she is released and can return home. However, it may take time to determine whether the person did not compromise the reputation of the country.[3]
[3] Organisation Suisse d’aide aux refugiés; website The report
The SRC report refers to four cases of mistreatment of returned asylum seekers:
…[I]n 2011, several human rights organizations reported that Iranian asylum seekers
deported from Europe were arrested, imprisoned and subjected to ill-treatment upon
return to Iran.
Rejected asylum seekers who encountered problems in returning to Iran during 2011.
The most publicized case in 2011 was certainly that of Rahim Rostami, a young 19-
years-old man of Kurdish origin, who had sought asylum in Norway in 2008, while he
was still a minor. His application for asylum having been rejected by the Norwegian
authorities, Rahim was deported to Iran on February 9, 2011, accompanied by two
Norwegian police officers. After being handed over to Iranian authorities, he was
interrogated and immediately transferred to Evin prison, where he spent several days
in solitary confinement and where he was mistreated.
There is also more general information that social media users who post anti-government or anti-Shi’a Islam content are taken seriously by the authorities. According to the US State Department’s 2014 Human Rights report, a Revolutionary Court sentenced eight Facebook users to prison terms ranging from 11 to 21 years; two of the eight were also fined and
sentenced to receive 50 lashes. The charges against them were “propaganda against the
state,” “assembly and collusion against national security,” “blasphemy,” and insulting
[4] 2014 Country Reports on Human Rights Practices - Iran", US Department of State, 25 June 2015,
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government officials and the supreme leader.[4]
The most recent DFAT report outlines the use of the Internet is widespread [5], but highly censored. According to the government, nearly 50 million Iranians use the Internet. Authorities block or filter websites and social media applications they consider objectionable, although Iranians routinely use virtual private networks (VPNs) to circumvent these blocks. Facebook, for example, while blocked, is one of the most popular social media platforms in Iran. YouTube and Twitter are also banned, although, in the case of the latter, this only applies to the general population (the Supreme Leader and President Rouhani, among others, have Twitter accounts). Instagram, WhatsApp and Viber are permitted. Iranians are avid users of social media and mobile messaging applications. Use of Instagram is widespread and growing. Telegram, a mobile messaging and information-sharing application, was suspended temporarily in January 2018 and then blocked by judicial order in May 2018. Telegram, which is encrypted, had been used to coordinate demonstrators and share footage of unrest during the 2017-18 protests. The authorities claimed Telegram was being used to spread propaganda against the state, disrupt national unity and incite terrorist activities, and some of its administrators were charged and imprisoned on these grounds.
[5] [2.126] –[2.128] DFAT Country Report on Iran, 24 July 2023
Before it was banned, Telegram had over 40 million users. Iranians continue to access in large numbers Telegram and other blocked services with the use of VPNs. In response to countrywide protests and rioting, in November 2019 the government implemented a weeklong total Internet shutdown — the longest and most widespread Internet outage in Iran’s history.
DFAT then assesses that the authorities do not comprehensively monitor Iranians’ online activities. Individuals with a public profile (including with large social media followings, particularly on Instagram), who are politically active, advocate for greater human rights, have connections to foreigners and are otherwise perceived as threats to the Islamic Republic, are more likely to have their social media monitored – and, concomitantly, face a higher risk of arrest or harassment – than other Iranians.
This assessment by DFAT in its country information report critically undermines its other assessment that the authorities in Iran are not much bothered by social media activities of Iranians who are failed asylum seekers on the basis that, as far as it is aware, the authorities do not check the social media accounts of Iranians returning from abroad.
DFAT’s assessments in this regard are not mutually supportive. It further indicates to the Tribunal the authorities in Iran are deeply concerned about online activities and its capacity to ferment dissent whether it occurs among Iranians in the community or offshore, although it cannot be always comprehensively vigilant.
The Tribunal further notes the information a 2015 Upper Tribunal decision from a United Kingdom case about internet activity in Iran.[6] The Upper Tribunal stated that online anti regime activity claims, on the surface, do seem somewhat far-fetched; however, given the nature of the Iranian regime, including its sophisticated measures to monitor and police the internet as outlined in the same UK case cited above, it is possible. The decision stated:
It is absolutely clear that blogging and activities on Facebook are very common amongst Iranian citizens and it is very clear that the Iranian authorities are exceedingly twitchy about them. We cannot see why a person who would attract the authorities sufficiently to be interrogated and asked to give account of his conduct outside of Iran would not be asked what he had done on the internet. Such a person could not be expected to lie, partly because that is how the law is developed and partly because, as is illustrated in one of the examples given above, it is often quite easy to check up and expose such a person. We find that the act of returning someone creates a “pinch point” so that returnees are brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activity and likely if they have any internet activity for that to be exposed and if it is less than flattering of the government to lead to a real risk of persecution. (Tribunal’s emphasis)
[6] AB and Others (internet activity-state of evidence) Iran [2015] UKUT 2057 [52] /
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In the applicant’s case, the Tribunal accepts there is a chance that is more than remote that his online activities will surface by investigating his entries. They may be agitated by royalist images and messages.
As a failed asylum seeker, the Tribunal accepts there is a real chance of the applicant’s stated views through easily accessible social media platforms will become apparent. and that he propagates content which they will consider corrupting of regime’s values. The Tribunal accepts the applicant has promoted anti regime views which will face a real chance by the authorities as being construed as being in opposition to the Islamic Republic of Iran. The Tribunal also accepts there is a real chance that these provocative opinions held by the applicant are sufficiently available and accessible, that they will soon come to light, and the applicant will be subject to adverse interest in the applicant by the authorities on arrival.
In addition, the available country information indicates the applicant’s conduct on social media - that the Tribunal accepts reflects his personal convictions - will also be a significant factor in further investigating and detaining the applicant for anti-government or even anti-Islamic activities or a combination of these motivations in a Western country. The country information strongly indicates that the current attitude of the Iranian regime towards actual or perceived dissenters has not softened in recent times and that Iranians returning from abroad continue to be subjected to considerable scrutiny, and that this attitude is heightened when failed asylum seekers are from Western countries or have a strong Western nonconformist dress code, which given the applicant’s Western-style of dress and appearance at the hearing would be heightened in his case. Furthermore, there is a real chance the applicant will be held without bail and be subject to a considerable period of administrative detention.
Cumulative Findings
In light of the numbers of serious factors which the applicant will cumulatively encounter on arrival as a forced returnee, the Tribunal accepts that there is more than a remote chance that the Iranian authorities will perceive the applicant to be a failed asylum seeker or forced returnee.
Based on the applicant’s circumstances, the Tribunal makes a further finding that it will be the applicant’s online activities which will surface on arrival, leading to the applicant receiving adverse attention as a failed asylum seeker. The Tribunal accepts that there may have been other monitoring of the applicant for attending rallies for example. The Tribunal therefore finds that the applicant’s membership of a particular social group, namely as a failed asylum seeker from a Western country, to be the essential and significant motivation for the persecution feared pursuant to s 5J(4)(a) of the Act.
The Tribunal according finds that that real chance of this adverse attention as a failed asylum seeker on arrival in Iran will include physical mistreatment during interrogation on arrival, over an extended period of time during remand and through punishment, including lashings.
The Tribunal therefore finds that there is more than a remote chance that the applicant will encounter serious harm, capable of amounting to persecution for the purposes of s 5J(4)(a) of the Act in the reasonably foreseeable future, should he return to Iran.
The risk of persecution faced by the applicant arises at the point of his arrival in that country.
Safe relocation within Iran is therefore not reasonably open to the applicant. As risk of persecution faced by the applicant comes from the Iranian state or its organs, the question of state protection does not arise.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act.
The Tribunal accepts that in order to return to Iran, the applicant would not return voluntarily. In such a situation, the Iranian authorities would have a reasonable suspicion that the applicant had sought asylum in Australia. The Tribunal has assessed the applicant’s case on the basis that he is likely to be stopped, interviewed and have his case examined in detail.

100. The authorities’ interest in the applicant will be further piqued by the considerable amount of time he has spent in Australia, a Western country.
101. The available country information provides several examples of failed asylum seekers – including those who were involved in online posting- experiencing serious harm on arrival in Iran, including significant physical ill-treatment and long-term incarceration and the loss of liberty.
102. Having referred above to the Tribunal’s above mentioned and unrelated 2022 decision (differently constituted) I go on to further incorporate such findings (which were referred to as a 2022 AAT decision in the applicant’s submission) into my decision, as they are directly applicable: Having regard to the country information, the Tribunal considers that it is possible that Iranian authorities will discover the applicant’s activities while detained as a failed asylum seeker or forced returnee. The Tribunal also considers that there is a real chance that the Iranian authorities would be able to investigate and scrutinise the content of the applicant’s internet presence upon his forced return to Iran, and will lead his case to be examined in more detail by one of the security agencies of Iran. Under robust interrogation, other social media activities have a real chance of coming to light which will then escalate the likelihood and degree of persecution to be faced by the applicant. The Tribunal finds that there is a real chance that the anti-regime content of the applicant’s social media activities would attract violent and humiliating questioning and a significant amount of time in custody and other significant maltreatment through interrogation. The Tribunal finds that this treatment would amount to persecution as it is serious harm, involving a threat to life and liberty that it is systematic and discriminatory. In view of the country information referred to above, the Tribunal is satisfied that there is the chance that the applicant may be of adverse interest to the Iranian authorities, even though he is not a high-profile influencer, blogger or activities holding conspicuous anti-government opinions, to be more than remote, far-fetched or insubstantial.
Conclusions
103. The Tribunal finds that the essential and significant reasons that the applicant’s real chance of persecution in Iran is reason of the applicant’s membership of particular social group, namely, a failed asylum seeker from a Western country, for the purposes of s 5J(4)(a). In this regard, it is not required of the Tribunal to exhaustively examine the applicant’s additional claims to have a well-founded fear of persecution for other reasons mentioned under s 5J(1)(a), such as religion (or the lack thereof) or his political opinion, imputed or otherwise, if they were to return to the Islamic Republic of Iran.
104. As the harm the applicant face is at the hands of the Iranian government and its security forces, the applicant will be unable to obtain protection by those authorities from the harm he faces. The Tribunal is satisfied that the real chance of serious harm exists in the country as a whole and that safe relocation within Iran is therefore not reasonably open to the first applicant.
105. For the reasons above, the Tribunal finds that the applicant has a well-founded fear of persecution for one of the five reasons mentioned under s 5J(1)(a), which Iranian authorities will consider being provocative and threatening to national security, if he returns to Iran now or in the reasonably foreseeable future.
106. Therefore, the Tribunal finds that the applicant satisfies the criteria under sections 36(2)(a) and 5H(1) of the Act.
Certificate
107. A non-disclosure certificate made pursuant to s.473GB is on the department’s file. The applicant was made aware of this in the hearing and later in writing. It is dated 6 July 2023 and states that a delegate of the Minister has determined and certified that:
the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled Rape and Kidnapping Allegations contained in PDF Portfolio [ ]- , [Mr B] – [ ]
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a) the document, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.

This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.

108. The certificate is signed and dated.
109. The Tribunal has taken the view that release would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
110. The Tribunal considers that this certificate was validly made. The documents noted above were not released to the applicant. The Tribunal drew no adverse inference from the documents protected in the certificate. They are neutral as to the veracity of the applicant’s claims for protection. The contents play no role on the decision and have no influence on the Tribunal’s findings on the merits of the case or the outcome. No further action was required by the applicant.
111. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
·For case number 1836028: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
·For case number 2214002: The Tribunal sets aside the decision not to grant the applicant a protection visa and substitutes it with a decision that the visa application made on 18 June 2020 was not valid.

Justin Meyer
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.
…

is available in French at asile-deboutes/?searchterm=Iran. It was translated into English by the Tribunal: F. Kuthan, “Iran: Treatment of Rejected Asylum Seekers”, 18 August 2011.

[2023] AATA 4019

31 August 2023

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