1836879 (Refugee)

1836879 (Refugee) [2019] AATA 5493 (11 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1836879
COUNTRY OF REFERENCE:                   Iran
MEMBER:Rodger Shanahan
DATE:11 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 April 2019 at 11:17am

CATCHWORDS
REFUGEE – protection visa – Iran – religion – Christianity – political opinion – credibility issues – inconsistent evidence – criminal convictions – no real risk of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424, 499
Migration Regulations 1994 (Cth) Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 December 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Iran, applied for the visa on 29 October 2018.
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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
He was beaten in Iran by the police ([Mr A]) in his own house and car and was handcuffed to a metal chair and bashed, kicked in the head and face and lashed with a belt. He was also rolled down the stairs from the fourth floor to the ground floor by the police amiyat. They tried to take them to court but [Mr A] got it changed to a court filled with his friends. He was locked in the boot of a [car] while they undertook other arrests – this was done during a very hot night.
The next day he was taken to the police amniyat station and he was beaten and cuffed and then hung from a metal bar. He also had a police motorbike driven at him so his shin was hit with the front wheel while he was cuffed and blindfolded.
He was also beaten by Basijis but he ran away while they were outside protesting and tearing up Ahmadinejad’s photos. He would also be beaten and tortured and jailed because he had a girlfriend and now because of [charges] in Australia.
Previous Travel
Since arriving in Australia on a [Country 1] passport in 2009, claiming and being granted protection, the amount of travel undertaken by the applicant has been significant. These include the following departure dates (DIBP had previously expressed concerns about whether he had travelled to Iran on some of these trips but had not mentioned it):
a.[In] Oct 2010 (claimed most time spent in [Country 2]);
b.[In] January 2011 (claimed most time spent in [Country 2]);
c.[In] March 2011 (claimed most time spent in [Country 2]);
d.[In] July 2011 (claimed most time spent in [Country 2]);
e.[In] May 2012 (claimed most time spent in [Country 2]);
f.[In] July 2012 (claimed most time spent in Iran);
g.[In] May 2013 (claimed most time spent in Iran);
h.[In] November 2013 (not declared);
i.[In] January 2014 (claimed most time spent in Iran); and
j.[In] March 2016 (claimed most time spent in [Country 2])
AAT Hearing
The applicant’s file was gone through with him. Asked if there were other documents, he claimed that there were screen shots from people he travelled with and photos with date/time stamps as evidence about his travel to [Country 2] in 2016 which had previously been called into question by DIBP. He also claimed he had been accused of traveling to Iran in 2012 and he provided photos that he claimed proved he hadn’t. He produced photocopies of documents relating to these claims and was asked if there were originals – he claimed that a friend took a screen shot from the applicant’s laptop computer and sent them to the applicant
There were no date/time and he said that at the top of the photos there was a stamp. Asked if he could prove they had not been inserted post-photo being taken, he claimed he could show the originals if he had access to his laptop. He said he could provide the laptop but it was never provided at this or the second hearing he attended. He also presented a [photo] of a woman that he said he met in [Country 2] in May 2012, although he was no longer in contact with her. He said this was proof that he had travelled to [Country 2] and not to Iran as DIBP had alleged.
It was put to him that the Tribunal had no way of knowing who this person was and it was unlikely to carry much weight and he said he understood. He also provided evidence of entry stamps to [Country 2] in passports that he claimed showed he travelled there with a friend and met his uncle there in 2013. He also provided some character references from 2017 before he was detained, and a marriage certificate from his wedding in [a specific location].
He claimed that if he returned to Iran, he claimed he would be jailed, tortured and possibly killed by the Iranian government because of the previous problems he had encountered in Iran. He was taking part in political protests in 2009 and because he had been convicted of [criminal] charges in Australia. They knew about these charges because his mother had written to the Iranian Supreme Leader’s office informing them of his crime in Australia and asking what would happen on his return to Iran. It was put to him that the Iranian authorities didn’t know of his charge, and he claimed they would have asked why he had been detained because this had been included in the letter.
He had no other reasons. It was put to him that he had sworn an oath on a bible and he said that he had converted to Christianity. Asked if he had a claim against religious persecution and he said that he didn’t. Asked when he had converted he said he had done it a month ago. He asked whether he should make a religious claim and he was advised that it was up to him. He made no such claim at this time.
He claimed that he just took part in the protest and on return (he and a friend were on motorbikes) they were pulled over by two other government motorcycles. They tried to arrest them but a fight ensued and he was able to run away. His friend was arrested the next day but he got a head injury and went to hospital and the next day he ran away to hide.
Asked when the protest was, he said he didn’t remember; asked what the weather was like, hot or cold he replied that it was ‘medium’ but wasn’t sure. It may have been Spring but it was during the elections. Theyw ere protesting against the voting irregularities to keep the president in power. Asked exactly what happened in 2009, he claimed that it was all over the news and they cheated for his second term election and they wanted to change the government – the protests were huge and exciting.
Asked who he voted for, he claimed he didn’t vote. Asked why he protested when he didn’t vote, he claimed his family voted. He couldn’t remember why he didn’t vote. He then said the government didn’t care about people’s opinions and the votes don’t count. It was put to him that President Khatami was elected and this was not foreseen and Rouhani was elected on the first round. So within a narrow range of candidates votes did matter. He agreed but said that after people have been ignored for so long he didn’t want to bother.
He was asked why he bothered protesting if he didn’t bother to vote - it was put to him that he wanted to protest to change the government yet didn’t want to vote to change the government and this didn’t make sense. He claimed it didn’t make sense to the member because he hadn’t lived there. It was put to him that the member had been to Iran several times.
He left home the night after the protest and stayed at a house in his parents’ village that they owned for about a week. His brother organised someone to help him leave Iran – he had no passport. He then said that he did have a passport, and had got it 1-3 years prior to leaving. He left via the [Country 3] land border but was smuggled. They took a service taxi from Iran to a [village], then gave him to a smuggler who took him to a small village in [Country 3]. He met the original smuggler and they took a bus somewhere.
He had no passport or identity documents at this stage. Asked if applied for protection in [Country 3] he said that he didn’t; asked why not he said he just did what the smuggler told him. He was about [age]. Asked why he left Iran, he claimed it was because he had been protesting and his friend was arrested and it was put to him that the Tribunal was trying to work out why he didn’t apply for protection given he was a [age] year old fleeing from Iranian authorities.
He claimed this was new to him and he didn’t know what to do. He stayed there for four or five weeks and then went to [Country 4]. Asked why he went to [Country 4], he said he just followed the smuggler. He stayed there 12-13 days and was asked if he applied for protection, he said that he didn’t – he thought about it but the smuggler said he was going somewhere else.
He was asked if he enquired about where he was going he claimed that he hadn’t, but then claimed that he had asked but the smuggler didn’t tell him. He was asked why he didn’t tell the smuggler he wanted to stay and apply in [Country 4] given it was a well-known refugee destination, and he claimed he just didn’t think about it. He went to [Country 5] in transit for five or six hours but didn’t apply for protection for the same reason – in [Country 5] he was told that he was going to Australia.
When he applied for protection in Australia he used a [Country 1] passport and was asked whether he told them he also had an Iranian passport. He said he didn’t know if he was asked and when it was put to him that it was part of the normal process, he claimed he may have and would have told them as there was no reason not to.
He did not leave Iran on his Iranian passport as there was a risk in doing so. He believed there was still a risk traveling on his Iranian passport. He was asked if he had a passport renewed since his 2009 one, and he claimed he had two issued by the Canberra embassy – in 2012 and 2015. He was asked why, if he was afraid of the Iranian government he would approach the Iranian embassy not once but twice to get a new passport. And, if he was wanted by the Iranian government they would twice issue him a passport.
He claimed that he had an emergency and had to go to Iran. His father was very sick. Asked why he didn’t get an Australian-issued travel document as a refugee if he had to travel to Iran on an emergency, he claimed that he didn’t know he could. He was asked if he enquired about it and he said he tried to get one to [Country 3] and [Country 2]. He didn’t know why he didn’t ask for it to go to Iran. He confirmed he had an Australian travel document and said he didn’t think about when he travelled to Iran on an Iranian passport rather than an Australian travel document. He said that on the back of the Iranian passport it said that all Iran Iranians must enter Iran on an Iranian passport.
There was no problem in being issued his Iranian passport. He didn’t go through the normal gate and used a friend of his [relative] who got him through a ‘sneaky gate’. The person was an immigration guy, that was arranged by his [relative] who was [part] of Ahmadinejad’s office for [a number of] years. Asked to be more specific about his role, he claimed that he thought he was part of Ahmadinejad’s personal staff. It was put to him that he was trying to tell the Tribunal that his [relative] worked on the president’s personal staff yet didn’t know much about his role. Given he was placing his life in his [relative]’s hands it was reasonable to believe that he would have made some enquiries about his [relative]’s role.
His [relative] was one of Ahmadinejad’s favourite students at university and went to work in his office once the latter was elected president. He was sure that his [relative] was close to the president. It was put to him that it was strange that he would help the applicant who had been protesting against President Ahmadinejad, to whom his [relative] was close. The applicant would be the last person someone like his [relative] would help. He claimed that his [relative] was family and loved them.
It was put to him that he had been protesting against the person who had taught his [relative], and had invited him to his office. It was reasonable to believe that his [relative] was ideologically aligned with Ahmadinejad, so it was strange that the [relative] would go out of his way to help someone who had been protesting to bring down Ahmadinejad, his [relative]’s boss and mentor. It was put to him that his [relative] appeared to have done him lots of favours and he agreed that he had.
Country information was put to him that low-level protestors from 2009 were not of interest to the Iranian government. It was strange that they were interested in him at all, and now 10 years after the incident given he had no profile and the government had lots of other issues to deal with. He claimed that if anyone protested against the government they were jailed, raped and executed. It was put to him that country information didn’t support this, and he claimed he lived there and it did happen.
He went back to Iran because of his dad’s [medical incident] in 2012, 2013 and 2014. The first time was because of his father’s [medical incident]. Then in 2013 his father passed away and the third time his sister was badly injured in a car accident. She had leg injuries. Asked why he had to go back as she appeared only to have a broken leg, given he also claimed the Iranian government would torture and kill him. He claimed that his [sister] was very sick. His [relative] helped him all three times. It was put to him that Ahmadinejad was no longer in office in 2014 and the applicant claimed the immigration official was being paid for it. he had no idea how his [relative] knew the immigration person.
He had provided a letter he claimed was from his [relative] explaining how and why he did it. The letter made no mention of the applicant’s third visit to his sister, and said that the visits occurred while he was in Ahmadinejad’s office and while he still had friends with influence. It sounded like he was using his influence, rather than money to help the applicant. The letter also stated that he could not be of any help after the end of Ahmadinejad’s rule. He repeated that the immigration officer was paid. It was put to him that the letter didn’t mention about paying anyone. He claimed that he didn’t ask the [relative] to write all the explicit details of what went on.
Regarding his [conviction] and Iranian government knowledge of it, he claimed he was convicted in February 2014 and his mother wrote to the Supreme Leader in the first few months of 2018 in order to seek forgiveness for his protesting and the [charge] so he could return to Iran. He was asked why he had to seek forgiveness for something the Iranian government was not aware of. He claimed they would know he had been in detention, and he was asked why they had to say [specific] charges rather than unpaid fines. He claimed that if he was deported he ahd to have told them the truth.
He was asked why he thought he would be deported to Iran. He claimed that if he signed that he would agree to go back to Iran, he claimed he would leave the country no problems and go to [Country 3] or [Country 2], and would claim protection in [Country 3]. It was put to him that the Tribunal still didn’t understand why his mother would tell about the [charge]. He said that he was told that if he agreed to go back to Iran he would be accompanied by two officers in handcuffs – all the detainees told him this. He was asked how they would know and whether he had asked the government what the procedures were.
He claimed he hadn’t asked any official about the procedures and it was put to him that this would be the sensible thing to do, but he claimed people in detention had seen all these people leave over the years. It was again put to him that it was strange that he had not even checked with Australian officials. He again claimed that he only listened to what the others told him. Country information was put to him that fraudulent documents were common in Iran and that the documents ha gave could have been produced on any home computer, so the Tribunal had concerns that the documents were not actually from the Supreme Leaders office or had ever been written by his mother. He claimed that being in detention this was the best he could do as nobody could come and present evidence.

He had recently been married and showed the certificate but it had not been registered. There was a marriage celebrant but was baptised after his marriage. He was baptised a catholic [by a priest] and the priest and two nuns came. He didn’t yet have a baptism certificate but it would come. He didn’t bring any witnesses. Asked what instruction into the faith he had been given as it was usually a lengthy process. He claimed he had been learning for three months and learnt about the Gospel and how the bible had been written by three people, Joseph, John and someone else. It was put to him that the New Testament had been written by four people, Matthew, Mark, Luke and John.
He learnt about Jesus and that Mary was married to someone (he thought it was Joseph). He had to Google translate parts of the bible and it was hard. He was asked about Easter and what occurred during this period, from Holy Thursday to Easter Monday. He claimed that he didn’t think he had come to this part yet and were given one page a week to learn when the priest came. During the baptism the priest read something from the bible and perhaps from something else, had water poured over his head and they ate something sweet. He was told he would be given some time to provide a letter from the Catholic church about what occurred during his baptism.
It was put to him that he had never previously expressed any interest in religion and was asked why he became interested three months ago – he claimed he had been thinking about it since he was 18. He came from a very religious Shi’a Muslim family and had a [object] tattooed on his [body] when he was [age]. The Tribunal was interested in what he did from 2009 when he came to Australia and was free to explore religious faith. Asked if he could provide any evidence that he had expressed any interest in religions greater than three months previously and he said that he couldn’t. He was advised about s 5 J(6) and it was put to him that he had shown no interest in religion since he arrived in 2009 and then he became interested in religion three months before his Tribunal interview, and he didn’t appear to know much about the faith. He claimed that he didn’t really care what others thought about his conversion as he had done it now.
Asked why he hadn’t been married in the Catholic faith given it was a sacrament, he claimed he didn’t really care as he had little choice in what he did. It was put to him that the priest and nuns would have arranged it if he had asked, and he claimed the welfare officer just gave him a set of numbers. He never asked the priest. It was put to him that it was strange that he was a catholic now but didn’t ask to be married in the catholic faith.
Asked why he had twice changed his name to Anglicised names and he claimed the first time it was because people found it hard to pronounce. His ex-defacto chose the name. The second time was after he broke up with his defacto and he didn’t want to be reminded of her.
He was told about s 424AA and it was put to him that in his 2012 Iranian passport it said that he had last left Iran through the Imam Khomeini Airport in 2009, yet he had claimed he was smuggled out through [Country 3]. This was inconsistent and there was a concern that he had left Iran through the airport in 2009 and the fact he hadn’t claimed asylum in [Country 3] or [Country 4] may also support this fact. He claimed that his passport he entered Australia showed where he had travelled. Regarding the 2012 Iranian passport he claimed that his [relative] was able to get the Imam Khomeini airport stamp in his old passport and sent to him via DHL.
He was asked why they issued a passport if he was on a watchlist, and he claimed they issued it to anyone who had done their military service. He claimed they would issue him a passport here as they wanted to catch him in Iran, but they didn’t catch him in Iran because he went through the ‘sneaky’ gate.
It was also put to him that there were concerns that he had travelled to Iran on five, rather than three occasions between 2012-14 as he claimed. This was based largely on entry/exit card responses that mentioned Iran as his primary destination or not filling out the form at all. On one occasion he had been unable to recall where he had stayed in [Country 2] or [another named country] or recount his travel plans while there. He claimed that he had only gone three times and there was no need for him to lie.
It was also put under s 424AA that when he was going to [Country 2] in 2016 and questioned by DIBP he had no travel plans made or accommodation booked and said he had last visited his family in Iran ‘three years ago’ which would have made it 2013. This raised question as to whether he had actually gone to [Country 2] for the whole time. He claimed he had been to [Country 2] 13 or 14 times and knew the area and booked a hotel when he got there. He had also travelled around Australia.
In Australia he had been charged on [criminal charges] ([details deleted]). It was put to him that lots of what he told the tribunal relied on his oral claims and this may be taken into account when assessing his credibility.
He claimed that he had told his family in Iran that he had converted to Christianity. Asked if he would practice his faith in Iran, he claimed he couldn’t go to the church in Iran. He didn’t know if there was a Catholic church in Iran but had seen some churches.
Second AAT Hearing 10 April 2019
A second hearing was conducted with the applicant in order to ask questions not covered during the first hearing. It was put to him that there were two aspects that weren’t covered in his last hearing. He had made a claim that he would be jailed and tortured because of a relationship he had with a girlfriend. He was in a relationship with a girl ([Ms C]) before he came to Australia in 2009 (about two or three years before that) and her family found out and made death threats against him on the street and via phone.
They then brought a friend who was in the ‘information police’ (explained as a police person in a station who controlled everything, including fellow police) who began calling and threatening the applicant. He then made false documents so he could enter the applicant’s house, and then he arrested him and brought him to the police station where he was handcuffed to a metal chair screwed to the floor. Her brothers and uncles were there also there beating him because he was in love with their daughter/sister.
They believed it was embarrassing to their family because a lot of people knew of their friendship. It was put to him that this was quite extreme a punishment simply for being in love with [Ms C] and he agreed it was very extreme. He then said that [Ms C] had overheard her father tell her family’s friend (the police officer) that the friend should shoot the applicant in the back of the head and the father would pay for everything; any court costs, any blood money requirements and the like.
Asked if he had any evidence regarding his beating, he said that he ahd provided it previously and said he had [scars]. He showed his [scars] to the member but from the distance there wasn’t anything overly distinct. He claimed that 7 or 8 people beat him and it was put to him that they must have left some horrible marks on his body.
He claimed that he never went to hospital as he was in the police station. Asked whether he took photos once he got home given he must have had serious injuries, he claimed he had taken photos but wasn’t sure at which time as he had been arrested several times. Asked how many time she had been beaten, he claimed once only. He claimed he went to jail and didn’t get home for 10 days or two weeks – he needed to go to hospital but they didn’t take him.
He was asked if he had any evidence to support this and said that he didn’t. He was asked why he didn’t present this claim at the last Tribunal hearing and he said that he didn’t know; he was just answering questions that he was asked. It was put to him that he was the one presenting his claim. He said that he was hit in the face by someone’s motorcycle helmet. He claimed that his nose was bleeding and his head was like a potato. It was put to him that this may have indicated brain injuries and he would surely have sought medical attention at least once he got home given the nature of his head injury and his prolonged beating.
He claimed that life was different in Iran and if one wasn’t in pain then one didn’t go to hospital. Asked if his head healed after it looked like a potato, he claimed that it did for him. It was put to him that a reasonable person would seek medical advice for this type and extent of purported injury. He again said that things were different in Iran.
Asked about a tattoo, he claimed he had [specific tattoos] and a few others. They weren’t visible to the eye given he had long sleeves on. But those on his [body part] were shown to the member. Asked if he would be harmed because of his tattoos, he claimed that everything was a crime, including tattoos. The member put to him that he had seen people with neck tattoos on the train in Tehran, girls with sleeve tattoos in coffee shops.
The applicant claimed that every one of them would be in trouble, as the authorities would wait for them. It was put to him that nobody seemed to be hassling the ones with tattoos, and he said that he hadn’t been to Iran for 10 years so things may have changed. He then claimed that having tattoos on top of other things may cause him to come to the authorities’ attention.
He then claimed that he had taken the policeman who arranged his beating to the military court, and seven or nine others were doing the same. Asked if he had any evidence of these court proceedings he said at the time he had a lawyer but didn’t have it (evidence) any more.
He was asked why anybody would be interested in the fact that he had a girlfriend 10 years ago, and he claimed they weren’t done with him.
He was asked about a [certain] tattoo, and he claimed that when he was [a certain age] he had [a] tattoo on [specific body parts], but his family made him remove it. Because there were no tattoo removalists, he went to a surgeon to remove them. He showed where he claimed there had been one on his [body part], but he said it had been stitched and then another tattoo put over the top of it. On his [other body part], there was a mark that looked like [specific object]. He said that the surgeon cut his skin and removed the tattoo itself but this outline remained.
It was put to him that this didn’t appear to be a way that someone removed a tattoo by surgery and then left an outline and he claimed that this was what the surgeon did. He was then asked why he got [tattoos] of [specific objects] given he wasn’t religious when he left Iran. He claimed that he was going to convert to Christianity when he left, as he learnt about it from [a girlfriend] he had. Asked if he had mentioned this [girlfriend] previously, he said that he didn’t because he didn’t have to mention every single thing.
It was put to him that he was trying to convince the Australian government he required protection and the Tribunal was having a hard time believing that he had [a girlfriend] and was interested in Christianity before he left Iran given he had not mentioned these before. He was asked why he stopped having an interest in Christianity after he had tattoos removed, and he claimed that his [sports] coach saw it during training and told him he couldn’t come to training unless he had it removed. He never mentioned this before because it wasn’t important and nobody asked him about it before. Asked why he never did anything to learn about Christianity even though he was allegedly inspired to get [tattoos] of [religious objects], he claimed he was just busy with life.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia via plane using a [Country 1] passport in 2009. He has subsequently provided copies of Iranian identity documents and is fluent in Farsi. The Tribunal accepts that the applicant is an Iranian national and his application will be assessed as such.
The applicant is a [age] Iranian who claims to have married an Australian citizen since he has bene in immigration detention. He claimed that he would be imprisoned, tortured and possibly killed because he had taken part in political protests in Iran in 2009, because he had converted to Christianity, had tattoos of [religious objects], had a girlfriend in Iran whose family didn’t like him, and because he had been convicted of [criminal] charges since being in Australia. He had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Political protests
I do not accept that the applicant ever took part in any political protests in Iran in 2009. To begin with, it relies entirely on his oral evidence which lacks credibility. Whilst I acknowledge that these events were ten years ago, he was unable to remember when he took part in them. There is also an inconsistency in his claim that he did not vote, even though he then turned out to protest about the rigging of an election in which he did not take part. Country information[1] also indicates that voter turnout for the 2009 presidential election was a record 85 per cent, which would indicate a very high level of voter interest in contrast to the applicant’s view that the votes didn’t count.
[1] accessed 11 March 2019
Country information indicates that it is highly unlikely that even those arrested during the 2009 protests would face surveillance or harassment or difficulty in obtaining employment. Given I have found the applicant never participated it follows that he is of no interest to Iranian authorities for anti-government political activities.
Travel Profile
His travel profile is not reflective of someone fleeing government persecution or of having any fear of Iranian authorities on return to Iran. I also find that the applicant has been untruthful in outlining his movements since leaving Iran in 2009. He claimed that he left Iran by using a smuggler who took him to [Country 3] by land, then [Country 4] by air, then Australia via air, transiting through [Country 5]. He never sought asylum in any of these countries; despite being an adult allegedly fleeing persecution in Iran he simply went with what the smuggler said. It lacks credibility that the smuggler, knowing that [Country 4] is a well-known refugee accepting country would then try to continue the applicant’s journey to Australia via [Country 5] which would have been both more expensive and riskier.
In addition to the implausibility of the claim, this account is also inconsistent with an entry in his 2012 Iranian passport that stated his last exit from Iran was [in] August 2009 through Imam Khomeini airport. He had never previously mentioned this and only provided an explanation once confronted with the adverse evidence. I do not accept that his [relative] arranged for this exit stamp to be inserted retrospectively in his old passport and travel records amended accordingly. To begin with, it is a significant event to forget to tell the Australian authorities, particularly as it was inconsistent with his claim to have fled by land to [Country 3]. It also relies on his [relative] (who he claimed was on President Ahmadinejad’s [staff]) having sufficient influence to carry this out. I do not accept that the [relative] had such a position or did this for the applicant.
The account relies solely on the applicant’s credibility, which is lacking. The applicant claimed that his [relative] had been a favourite student of Ahmadinejad’s at university and went to work for Ahmadinejad as soon as he was elected president in 2005. This would indicate a heavy degree of ideological alignment between the applicant’s [relative] and the ultra-conservative, ultra-nationalist Ahmadinejad.
Ii is inconsistent therefore, that someone this ideologically committed to the revolution would go to considerable lengths to falsify travel records and to bribe an immigration official in order to help someone allegedly wanted by the Iranian government for protesting against the legitimacy of the very president the applicant’s [relative] serves. Given the ideological rigidity of Ahmadinejad (and presumably those working so closely with him), I do not accept that this [relative] did it simply because he liked the applicant and his family.
The applicant’s willingness to return to Iran on at least three occasions is also not indicative of someone who fears the Iranian authorities. He claimed that all three were done for emergency reasons (two relating to his father’s [death]) and one for his sister who was in a car crash. The applicant used an Iranian passport obtained (twice) through the Iranian embassy in Canberra. This shows the applicant does not appear to have any concern with accessing the Iranian diplomatic network and traveling to Iran on his Iranian passport.
The applicant’s sister appears to have undergone surgery for a broken leg and fractured knee (folio 94). This was not a life threatening injury and so the willingness of the applicant to return to Iran for this procedure is further indication that the applicant is comfortable travelling back to Iran on his own Iranian passport, and hence reinforces the Tribunal’s belief that he is of no interest to Iranian authorities.
I have taken into account the letter the applicant claims to have been written by his [relative] (folio 146) attesting to the assistance given by him to the applicant. I lend it little weight however. It could have been written on any home computer and, while it was allegedly written in June 2017 it makes no mention of any assistance given by the [relative] to get the applicant into Iran to visit his sister, or how the applicant was able to enter even though the [relative] was no longer in the president’s office.
Indeed, the whole issue of entering Iran to see his sister but not being stopped by Iranian authorities lacks credibility. His [relative] has not mentioned this visit, even though it occurred three and a half years before the letter was written. The Ahmadinejad presidency ended on 3 August 2013 and the [relative] had noted that with the end of the Ahmadinejad presidency the [relative] didn’t have any position in the presidential administration and couldn’t be of help to the applicant. He also said that, as a result, the applicant ‘…is not permitted to enter the country and has been wanted for prosecution and still is…has no security guarantee if he enters Iran…’.
Yet the applicant was able to enter Iran in January 2014 without any problems even though his [relative] was no longer part of the president’s office. I do not accept that the applicant was able to simply pay the airport immigration officer that he had used previously. Not only does this rely on the applicant’s oral evidence alone, no mention of payment was made in the [relative]’s letter and no explanation of how he was able to coordinate this without his [relative] in office was given, nor any evidence of correspondence with the person or any relatives that would indicate such arrangements needed to be made and had been confirmed. This is also inconsistent with the applicant’s statutory declaration (folio 173) where he claimed that his brother advised him that his safe passage to visit his sister in January 2014 ‘had been arranged with [name] (the [relative])’ even though [the relative] self-admittedly said he couldn’t be of help to the applicant from August 2013.
[Criminal] charges

The applicant has been found guilty and given a suspended [prison] sentence for [certain crimes] after lying to [police] . I do not accept that the applicant’s [charges] are known or would likely to become known to Iranian authorities. The Australian authorities have not and will not disclose these charges to the Iranian authorities, and I do not accept that the applicant’s mother has written to the Supreme Leader’s office.
Once again this relies on the applicant’s oral testimony and, given the inconsistencies and previous history of lying to the police I do not place much weight on his credibility. The letter from the Supreme Leader’s office (folio 147) could have been written on any home computer and makes reference to his attendance at a street rally in 2009 which I have found was not the case.
His reason for his mother having written to the Supreme Leader also lacks credibility. He claimed that she did it to seek forgiveness because the authorities would know he had been in detention in Australia because he would be taken to Iran in handcuffs accompanied by two or three Australian immigration officials. He allegedly based this solely on hearsay from other detainees in the immigration detention centre, and had not asked any Commonwealth official about the procedures for people who returned to Iran.
Religious Conversion
Whilst I accept that the applicant was baptised into the Catholic faith in January 2019 I do not accept that it is a genuine conversion. I have taken into account the letter provided at the second hearing from the Catholic priest who baptised the applicant but lend it little weight. Whilst I am sure the priest was genuine, he does not have the benefit of a broader picture of the applicant’s truthfulness and integrity. The Tribunal has formed the opinion on the evidence available to it that the applicant lacks either of these attributes.
Although one’s faith identity is a private issue and there is no test for whether someone is truly converted or not, the totality of the applicant’s circumstances means that I do not accept that this action is genuine. Some basic elements of Catholic (and indeed Christian) knowledge were lacking. He thought there were three authors of the bible and named two of them as Joseph, John and someone else. He couldn’t name anything to do with any of the events of Easter, the central celebration of Christianity.
More importantly, he never made any mention of religious identity as a potential reason for persecution in his protection visa application, even though he claimed at hearing that he had been interested since he was 18 years old and had [religious objects] tattooed when he was younger. The issue of his tattooed [objects] was raised during the second hearing, and while the tattoo issue is addressed below, he claimed that he was inspired to get them when he was [age] because of the [girlfriend] he had at the time.
I do not accept this to be true. He had never previously mentioned the existence of [a girlfriend], and it lacks credibility that someone who was allegedly so inspired by his girlfriend’s faith to get [objects] tattooed on his body would not do anything to learn about the faith. I do not accept that he failed to mention the [girlfriend] because he didn’t think it was important or because he wasn’t asked. It is reasonable to believe that having such a deep relationship with a Christian girlfriend that one would allegedly tattoo [religious objects] on their body would be worthy of mentioning as part of a protection visa application.
Most importantly is the timing of the conversion, coming as it did the month before his Tribunal hearing. There is no mention of any religious conversion or attraction in his statutory declaration of 21 December 2018 (folio 169). There is a character reference from a pastor at a church in [Australia] that the applicant spent a few hours painting but there is nothing to indicate he ever sought or received any Christian instruction.
As I advised the applicant during the hearing, s.5J(6) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.
Because I have found that the applicant is not a genuine Christian convert, it follows that he has not told his relatives in Iran and therefore he would not be imputed with a Christian religious identity on return to Iran.
Tattoos
I accept that the applicant has a number of tattoos but note that none are visible when the applicant wears long sleeves. I do not accept that it is a crime that people are lashed for as the applicant claims, or that having a tattoo makes it worse if you are detained by the authorities. He admitted that he had not been in Iran for ten years and that the rules may have changed.
Country information[2] and the member’s personal experience indicate that tattoos are a relatively common site in a city like Tehran. The same country information also indicates that it is unlikely that the authorities would maintain an interest in someone who had previously come to their attention simply for having a tattoo. There is nothing in the tattoos that he showed the member that are politically contentious and may bring him to the attention of the authorities.
[2] DFAT Country Information – Iran, 21 April 2016, p 17.
I do not accept that he had [tattoos] of [religious objects] but had them removed by a surgeon. There is nothing to indicate that this was the case on his [body] where he said one had been, but the tattoo was removed, the skin was then pinched over and another, bigger tattoo painted over it. On his [other body part] there was what appeared to be the outline of what may have been a small [object], but it didn’t appear to have been tattooed nor the remnants of a surgical procedure to remove the tattoo.
If the latter the surgeon must have removed the ink and left the outline, which to a layman appears strange – it also appears inconsistent with the procedure described with respect to the [body part], where the tattoo was removed, the skin pinched and then sewn. The applicant did not mention why two different procedures leading to two different results would be carried out.
Failed Asylum Seeker
Although he made no direct claim on this basis, I have included it for completeness’ sake. To begin with I am not satisfied that the applicant will be involuntarily returned to Iran either now or in the reasonably foreseeable future. The Iranian Foreign Minister during his March 2016 visit to Australia stated that Iran would only accept failed asylum seekers from Australia who returned voluntarily[3].
[3] >
Given that the Iranian government has indicated that it will not accept involuntary returnees, the only way that the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. If he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker[4].
[4] DFAT Country Information – Iran, 21 April 2016, pp 28-29
Country information indicates that a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.’ and that Iranian officials do not attempt to prosecute a voluntary returnee. This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’[5]
Other Issues
[5] DFAT Country Information Report, Iran, 20 November 2013, p 25
I do not accept that the applicant had a girlfriend called [Ms B] in Iran and that her family disliked him because of it and beat him up, or that her father wanted a policeman friend to shoot the applicant in the back of the head. He never raised this issue at the first hearing and it was only at the second hearing when asked by the Tribunal that he elaborated on this claim.
The alleged punishments (being beaten by seven or eight relatives whilst handcuffed to a metal chair in the police station, including being hit in the head with a motorcycle helmet, and being shot in the back of the head) seem quite extraordinary punishment for the alleged transgression of being someone [Ms B]’s family didn’t like going out with their daughter. Despite the level of injuries he must have sustained from such a beating, he was never taken to hospital nor did he seek medical treatment (or even a check-up) when he returned home days later.
The applicant described his head as ‘looking like a potato’ after the beating and blows from the motorcycle helmet so it is inconceivable that he would not have sought any type of medical treatment. I do not accept that attitudes to seeking medical treatment are that different in Iran that people shun going to a doctor unless they feel pain. There is no photographic evidence of his alleged injuries, nor has he provided any documents to support his claim that he took the police officer to the military court. The claim relies in its entirety on his oral testimony which I have found lacks credibility.
Because I do not accept that the applicant has been, is or would be of any interest to the Iranian authorities I do not accept that he was ever beaten by the police, handcuffed to a metal chair, rolled down four floors of a building, stuffed in the boot of a [car], hung from a metal bar or taken to a court filled with a certain police officers’ friends. These all rely on his oral evidence which I have found lacks credibility – no evidence regarding court summonses or verdicts was ever presented nor were these claims expanded upon during the hearing.
I have taken into account the range of character references and hand written submissions provided by the applicant but give them little weight as they contain nothing that overcomes any of the concerns that I have outlined above.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
Although I have disregarded the applicant’s baptism for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). I do not accept that the applicant has genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant will be imputed with being a Christian and/or apostate through his baptism, or that he has or will come to the attention of the authorities for being a non-observant Muslim.
I do not accept that the applicant ever took part in political protests in 2009, that he was is or would be wanted by the Iranian authorities because of this, that the Iranian authorities know of his Australian [convictions], that he was ever bashed or beaten by the police or otherwise mistreated by them, that he ever went to court because of it, that he would be beaten or go to jail for having had a girlfriend, that he would come to the attention of the authorities for having tattoos or that he had [religious objects] tattooed on him when he was [age] in Iran, or that he would be prosecuted as a voluntary returnee or for seeking asylum. Because of these reasons I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 5493

11 April 2019

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction