1837455 (Refugee)

1837455 (Refugee) [2024] AATA 1374 (2 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1837455
COUNTRY OF REFERENCE:                   Iran
MEMBER:Denis Dragovic
DATE:2 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 02 February 2024 at 8:28am
CATCHWORDS
REFUGEE – protection visa – Iran – evasion of military service – military conscript – social media influencer with moderate size following – sympathizer of the West – alcohol drinking – alternate Islamic views – anti-regime/pro-Shah views – modification of behaviour unreasonable – Moharebeh – death penalty – appropriate and adapted to achieving some legitimate government object – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19
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 Home Affairs on 5 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Iran. He applied for the visa on 9 November 2016.
At the Departmental stage the applicant claimed to fear harm for reasons arising from his participation and baptism in a Christian church in 2004, a dispute with an Iranian over bond money, and for reasons of marrying a non-Muslim Australian woman. The delegate refused to grant the visa on the basis that the applicant’s claims of fearing harm in Iran were either found to be based on information that was not accepted or that there was no objective basis to the fear.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's sister.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The applicant is a [age]-year-old Iranian man who was raised in Tehran but lives his life largely in Australia since he was [age] years old. He first arrived in Australia in 2004 to study at [a] high school. In 2005 he returned to Iran where he stayed through to 2010 studying at an Australia TAFE subsidiary in Tehran and working with his father in their family business. In 2011 he returned to Australia initially on a student visa following which he returned to Iran four times until mid-2012. After mid-2012 the applicant has not left Australia.
The applicant is from a wealthy family. His father owns [a percentage] of a group of companies which includes companies that are involved in [specified industries]. One company is involved in the production and sale of [specified goods].
The applicant provided the website to the companies which were viewed during the hearing and can be confirmed to include the applicant’s father as the Managing Director and in another as the Chairman.
The second largest ownership stake was claimed to be held by a deceased uncle of the applicant and is currently being fought over in the Iranian courts by the family of the deceased uncle and two other uncles. The applicant’s family is also in court over a newly built factor and an inheritance from the applicant’s grandparents.
Arising from these proceedings the applicant claims that he and his sister have been threatened. The sister explained that the wife of the deceased uncle called their father and said that she knows where the applicant and the sister live in Australia and that she would do something to them. The sister claimed that her father said that Australia wasn’t Iran and otherwise warned the children to be careful. The sister claims that she moved houses as a result of the threat.
The applicant is not a practicing Muslim. He claims that other than being taught how to pray while at school, he has not prayed since.
While attending high school in [Australia] in 2004 the applicant lived with a homestay family who took him to church every week. He attended a private Christian school that required him to attend mass every week. The applicant learned about Christianity during this period. He claimed that he was baptised while living in Queensland. Evidence of the baptism was provided at the Departmental stage.
When I asked him about his current beliefs, he said that he believes in a higher power. He believes in God. But he said that he doesn’t believe in the way the Iranian government describes Islam.
The applicant was married to a non-Muslim Australian woman. Pictures of his marriage were shared on his social media and they included images that made it clear that his wife was not a Muslim. After three years the relationship broke down and they divorced. When he posted those pictures, he claims that people unknown to him commented that he will be punished for marrying a non-Muslim.
The applicant is a bodybuilder, he was a [dancer] and continues to be a social media influencer. He has over [number] followers on Instagram and [number] on Facebook. While the majority of his posts are about his health and physique, a few involve political statements ranging from images of the applicant with a Shah era flag to videos of others explaining the political situation in Iran. The applicant explained that many of those who follow him are Iranian. He said that he receives explicit threats from unknown people when he posts political messages.
I noted one image of the applicant with the Pahlavi flag had [number] likes and a single comment which was translated to ‘get this off’. Another recent political Instagram ‘story’ he claimed had over [number] likes. As ‘stories’ on Instagram remain only for 24 hours, he was unable to verify his claim.
His [dance] work is with [named organisation]. He explained that doesn’t do it anymore as he is older and because of his lack of focus arising from his anxiety. His profile remains on the [organisation’s] website. He said that when he was doing it anyone in the room could take a photo and that he has had friends identify him on their social media.
He said that there are many photos of him on social media involving him posing while holding female bodybuilders, topless, and serving alcohol. He explained that when he was dancing it could involve full nudity, depending upon what the clients paid for.
The applicant’s sister lives in Sydney and is an Australian citizen. She identifies as a political activist. She appeared as a witness at the hearing and said that she has attended about ten protests sparked by the death of Mahsa Amini in late 2022. She has been filmed and images of her have appeared on social media. She said that she has ‘liked’ many anti-regime posts on her own social media.
The applicant claims that he and his family have received threats from a former housemate of the applicant, [Mr B]. [Mr B] is claimed to have had to depart Australia early and wanted the applicant to repay $3,000 bond on their shared house. The applicant refused. [Mr B] is claimed to have threatened him that if he ever returns his life in Australia would be revealed. He is also claimed to have threatened the applicant’s father, but the father simply said that it is not his problem as his son is an adult.
The applicant’s sister claimed in her 2016 written submission that her parents continue to receive threatening calls from unknown phone numbers that she believes to be [Mr B]. She noted at the hearing that the Iranian economy is collapsing and that is why even five years after the event they still wanted the money. I noted at the hearing that she had said that other than the call she had overheard while still in Iran the parents had not received any further threats from anyone. She said that she was told that this was the case by her parents but as she is living in Australia, she does not have first hand knowledge.
The applicant claims that [Mr B]’s father is a part of the political system being a member of the Sepah. I noted that [Mr B]’s father wouldn’t be senior in the Sepah if he was so desperate that he needed to pursue the bond money. The applicant stated that any money, even to the rich, is valued now as the Iranian economy is so bad.
During the applicant’s return visits he has been detained, convicted and lashed for various transgressions. He described being detained at immigration ae was arriving to Tehran for smelling of alcohol as he had some drinks on the plane. He said that he was taken to a police station and detained for two days. The weekend immediately after his release he claimed that he was at a petrol station wearing a pink t-shirt and was arrested by the morality police for his shirt and being ‘too tanned’. At another time he was at an underground party that was raided and as he was found to have alcohol in his system, for which he was given sixty lashes and fined 2 million toman.
The applicant noted that he has been punished twice for alcohol drinking and that in Iran there is three strikes rule and that you go to jail for two years. In the Iranian penal code, a person convicted of drinking alcohol on a third occasion can be sentenced to death.[1] An article was found that indicated that in 2012, around when the applicant was in Iran and caught twice for drinking alcohol, two people were given the death penalty for having consumed alcohol a third time.[2]
[1] ibid
There was a dob-in-letter on the file. There were a range of accusations including that the applicant had fabricated his asylum claims, he had faked a marriage to get a visa, that he wasn’t a Christian convert, he was involved in drugs and had a criminal record. This was put to the applicant, and he responded that much of it is untrue noting that he wasn’t involved in drugs and that he didn’t have a criminal record. The dob-in-letter was anonymous. I explained that I would put no weight on any of the material that may otherwise be relevant and noted that much of it was irrelevant.
The applicant claimed that this dob in letter is an example of the type of actions his relatives would take believing it to be from the family of the deceased uncle. He fears that were they to do the same when he returns to Iran he would be in considerable trouble.
The applicant has not completed military training. He acknowledges that he would have to. He said that the military is preparing to recruit people in anticipation of war. He said that he does not trust the government in anything that it says recalling their denials that they didn’t shoot down the Ukrainian passenger plane in 2020.
He believes that once he lands in Tehran, they would take his passport and he would in due course be given a letter to report for duty. He said that he wouldn’t have any rights while in the army.
The applicant’s sister gave an example of a father’s friend who returned from overseas and was imprisoned for six months because his daughters were promoting non-Islamic life overseas.
The applicant’s mother is Kurdish and her brother who is currently living in [Country 1] was formerly a pilot in the Shah’s air force.
In considering the applicant’s narration of his life, I accept his evidence and that of his sister as fact other than where explicitly found otherwise, but note that this finding is only limited to the recitation of the applicant’s life events as opposed to any supposition or interpretation on the part of the applicant and witness.
Discussion of Country Information
I shared with the applicant the following statements regarding assessments of the situation in Iran:
Non-practising Muslims are unlikely to come to the attention of authorities unless they make a public statement attesting to their lack of, or rejection of, faith...Mosque attendance in Iran is not usually monitored, and a large proportion of Iranians do not regularly attend mosques…Secularism is particularly widespread in major cities among younger and wealthier Iranians.[3]
DFAT assesses that non-practicing Muslims face a low risk of official and societal discrimination, especially in major cities.[4]
[3] ‘Common Claims: Iran’, Country of Origin Information Services Section (COISS), effective from 16 November 2023
[4] DFAT Country Information Report: Iran, July 2023 at [2.102]
The applicant responded that it is partially true.
I noted that DFAT assesses that the Iranian government does not care about what is said and done in Australia.[5] He said that the Iranian government lies. He referenced the fate of Amir Tataloo, a rapper and social media personality, who he claimed used to work for the regime. He claimed that they sent agents overseas to get him and as a result he chose to return. I note that Amir Tataloo is one of Iran’s most high-profile musicians and that his circumstances are not comparable to the applicants.
[5] DFAT Country Information Report: Iran, July 2023) at [2.203]
When I asked how his circumstances are similar to the applicant’s, he said that they are not similar, the claims that his circumstances are worse.
The sister added that originally, he was co-opted to make music that supported the regime but over time his music was perceived to be encouraging immoral behaviour and that as he was a big influence among the youth he fell foul of the regime. She said that it was the Turkish government that handed him over. She said that he is now in an Iranian jail. She said that her brother was similarly promoting non-Islamic behaviour through his social media activity, but Tataloo was better known.
Country information on Tataloo largely supports the applicant and witness’ explanation of the man’s circumstances. He was a supporter of the Iranian regime in some respects but fell out of favour and was subsequently detained in Turkey and handed over to Iranian authorities after demanding to be returned to Iran.[6] The applicant’s sister is correct also that he is more well known in that Tataloo has millions of followers and holds various world records on social media for his ability to mobilise his supporters.[7] Nevertheless, I accept that his detention is a sign of the regime’s shift against any perceived ‘immoral’ influence on the country’s youth.
[6] >
I note that the Iranian regime has recently cracked down on social media commentary including in December 2023 sentencing a young actor, Mohammad Sadeghi, to five years imprisonment for ‘several Instagram stories in which he criticized the enforcement of compulsory headscarf laws.’[8] There is no evidence before the Tribunal to compare the size of his Instagram following to the applicant’s but I accept arising from this example that the regime monitors and pursues those who criticize the government on Instagram.
[8] >
In considering the circumstances into which the applicant will be returning to, I accept his supposition that upon arrival to the airport in Iran he will be identified as someone who has not completed his military service. He may be questioned during his time at immigration control but the information available indicates that it will be brief and there is no claim that during his past visits he was detained other than when he smelled of alcohol.[9] He will then be released and as identified by the applicant, a letter despatched indicating a time and place to which he would have to report for duty.
[9] DFAT Country Information Report: Iran, July 2023) at [2.203]
I find that at some stage into the reasonably foreseeable future, he will be tried on the charge of evading military service. As the applicant explained at the hearing, although he had returned to Iran after turning 18 years of age, he had an exemption from being called up for reasons of holding a student visa. This aligns with country information.[10] But following the expiry of the applicant’s student visa in 2013 the applicant would be unable to justify his continued stay in Australia on the ground of pursuing further studies.[11] That it amounts to over ten years would be a substantial period that would be perceived to be an attempt at avoiding military service.
[10] Ibid See Art 34 (Note 2) at

Without specific country information indicating whether any evasion of military service charges would be considered concurrently to call-up or whether they would be considered consecutively, I find that it would be logical to assume that it is concurrent. This is because the question isn’t whether he will do his military service, it is whether he will do more than what is generally required or whether he will in addition to his military service serve a prison term. Either way, he still needs to complete his military service.
Upon receiving his call up notice the applicant will join other conscripts who will then be selected for one of four branches of the Iranian armed forces. The selection process for which branch a conscript will serve in has been described as ‘random’. It is described as a process where conscripts are lined up and representatives from the four branches select individuals without any apparent consideration of their background or skills.[12]
[12] >
Regardless of which branch he is selected for; he will have to complete basic training and into the reasonably foreseeable future he will be deployed. I now turn my mind to consider the circumstances during this deployment period and specifically whether he faces a real chance of serious harm or a real risk of significant harm.
The applicant has been absent from Iran for more than fifteen years having first left when he was [age] years old. He would be known through his behaviour, age and accent as having lived overseas for most of his adult life even were he not asked about his background. This would make him stand out.
While deployed he would have a concurrent pending evasion of military service court case. This, I find, would be on his ‘file’ and known to the officers and NCOs in his unit.
The applicant has a moderately sized Instagram following. Instagram is the only social media platform accessible in Iran and is widely used. The applicant would be known and his profile available to others to find. The applicant could delete his Instagram profile and remove all of his past posts. But as the applicant is already widely known to Iranians on Instagram, he has participated in protests in Australia and his sister is very active politically, I find that his activities on Instagram would already be known to authorities and as such do not consider further the possibility of the applicant deleting his account.
The applicant’s sister has participated in the Australian anti-Iranian government protests. I note that they were large scale in the number of participants, but there is country information indicating that Iranian embassy officials monitor protests[13], and it is plausible that they do so to film the protesters and then use facial recognition software to match images the government has of their citizens. In one example of the extent to which the Iranian government is pursuing protestors among its diaspora, a recording has been exposed showing an Iranian government agent in Iran calling a protestor in France to stop protesting and to stop posting against the regime on Instagram otherwise her family would be harmed.[14]
[13] and >
In considering these circumstances holistically, I find that the applicant would be identified and labelled as someone who is a sympathizer of the West and against the regime. Any concerns about the applicant would be buttressed by his two prior brushes with the law over his alcohol drinking. As this would be known to the commanding officers, I find that in the context of the military he would be targeted for closer attention, treated more harshly and deployed to undertake riskier duties.
In such circumstances the applicant’s political and religio-political views would be tested.
The applicant has clear anti-government political views. While it wouldn’t be appropriate to label the applicant as an activist, he has clearly established an identity that is more aligned to Western values than those expected of Iranian citizens by the Iranian regime. In addition, he has publicly on social media expressed those values by posing with women in bikinis, serving alcohol and from a political perspective, flaunted his support of the deposed Pahlavi government. I find that this would be known to the commanding officers wherever he is deployed.
The applicant’s lack of knowledge of Islam and its practices would also quickly become apparent. While there may be some tolerance accepting that the applicant has lived abroad, that he does not believe in the Islam that is interpreted and propagated by the Iranian regime will lead to confrontation and conflict. The way the applicant described his belief as being centred on one’s conscience is in stark contrast to the nature of Islam under the Iranian regime:
In a book entitled Islamic Governance, published in 1970, Khomeini outlined his plans for the creation of an Islamic state in Iran, reconceptualising the doctrine of velayat-e faqih to justify clerical guardianship of the state. The ayatollah claimed that God had made Islam for it to be implemented as shown by the creation of divine law (sharia). Given that no one knew Islam better than the clergy, Khomeini argued, it was natural that they should rule as guardians of the state until the return of the 12th divinely ordained Shia imam (Imam al-Mahdi or the Hidden Imam), who Shias believe was withdrawn into occultation by God in AD 874.[15]
[15] >
As such, the considerable research showing Iranians not to be particularly religious[16] is not as relevant in the context that the applicant will face as a military conscript considering that the foundation of the regime is based on a religio-political interpretation of Islam.
[16] >
It is also relevant to consider the current broader geopolitical environment to reach a best-guess assumption of the sentiments within the Iranian military towards any possible or imputed sympathizers of the West or those who hold anti-regime views or are imputed to hold such views.
Iran is currently seen by some as the source of much of the troubles in the Middle East, whether as the backer and potential sponsor of the atrocities committed by Hamas[17]; behind the repeated firing into Israel of rockets by Hezbollah, another Iranian proxy[18]; or as a result of the work of the Houthis of Yemen, also a proxy of Iran, who have disrupted shipping through the including by firing on US naval ships.[19] In the week preceding this decision a US military base was attacked by an ‘Iran-backed group’ leading to three US soldiers killed and scores wounded.[20] In Iran a suicide attack by Islamic State that killed nearly 100 was blamed on the United States and Israel despite IS claiming responsibility.[21] The current tensions in the region are at a heightened state. A widening of the conflict in the Middle East is considered a real possibility even though efforts are being made to avoid escalation.[22]
[17] >
Western governments have called out Iran for its actions and Iran has in turn vented its views against Israel and the West emphasizing, ‘the need for resistance against Israeli aggression and Western imperialism, especially American.’[23]
[23] >
This geopolitical tension, I find, would filter down not only into society in general by way of messaging by the Iranian authorities, as has been widely reported, but especially through the military ranks. I find that there would be an enhanced sensitivity to any serviceman’s perceived allegiance to Western countries or ideas at this particularly polarised time.
Were the applicant to return to Iran in this context and be called up to serve in the military I find that he would be confronted by his superiors and required to affirm by word and deed his allegiance to the regime.
The applicant would in such a situation need to either disavow his alternate Islamic views and his anti-regime/pro-Shah views or be harmed. This situation would not necessarily arise from a question-and-answer session, but it could arise from the applicant not following orders to the degree that would be expected of him.
He may be asked about his life in Australia, about his views on the West, about how he was able to practice his Muslim faith in a Christian country. Any of these lines of questioning or many others would lead to the applicant having to either deny, for example, his baptism, or lie about his political views.
I find that if he were to take such actions or was he asked and he did not disavow his views then the harm he faces would be serious harm (the type of harm that this would take is discussed further below) and that there is a real risk that he would face such harm.
I now turn my mind to consider whether it would be a reasonable modification of behaviour for the applicant to disavow his religious and political beliefs while serving out his military service. To do so the applicant would need to not only conceal by lying low or avoiding questions, as may have been possible prior to 7 October 2023 when Hamas invaded Israel, but as I have found that he would be suspected of alternate allegiances he would be required to positively disavow his political beliefs and his views of Islam as it relates to the Iranian state. But as detailed in s 5J(3)(c)(iii) this is expressly proscribed as a modification:
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:
(c) … 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;
…
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
As such I find that it is not a reasonable modification for the applicant to disavow his political or religio-political views.
I find that his political and religio-political views are the essential and significant reason for the harm that he would face (s 5J(4)(a)) as under the current geo-political environment there is an enhanced sensitivity within the Iranian military to any people who may have sympathies to the West.
In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that I have found the military as a whole to be sensitive to the increased geopolitical tensions and as such the military as a whole would seek to ensure that there are no Western sympathisers among its ranks even at the lowest rank of conscript.
As it is the state that would be seeking to harm him and the Iranian state being pervasive in its reach, I find that the applicant cannot seek protection from the state as the state is the persecutor (5J(2)).
I find that the applicant cannot relocate as the entire state of Iran is controlled by the authorities (s 5J(1)(c)).
Based on the limited information available regarding Iranian armed forces law, the UK Home Office reports on the military services in Iran abiding by the Armed Forces Offences Law. While no copy is available, a summary of it was provided by the International Federation for Human Rights:
This law stipulates that military personnel, and any civilians convicted of perpetrating offenses in connection with military personnel, should be deemed as mohareb in numerous cases. Such offenses include: devising plans to topple the government or effective involvement in an association for that purpose; taking action to harm the territorial integrity of the country; surrendering the personnel or bases under their command or submitting documents to the enemy; conspiring with the enemy; helping a government at war with the country or the mohareb and corrupt groups; taking armed action against the Islamic Republic; providing the enemy with documents and information harmful to the security of military facilities; submitting secrets of the armed forces to the enemy; disobeying commands leading to the enemy’s domination of territory or the army’s personnel; failing to use weapons or other facilities to fight hence leading to the defeat of the “Islamic front”; and willfully sleeping while on guard duty against enemies and the moharebs, on the condition that the action leads to disruption of the national security or the defeat of the “Islamic front”.[24]
I note that “Moharebeh” is an Islamic-Arabic term that means “fighting God” [25] or “enmity against God”[26] and its punishment is death.
[24] UK Home Office, ‘Country Policy and Information Note Iran: Military Service’ Version 3.0, November 2022 [3.2.3]
[25] >
As an example of the ease with which the death penalty is being applied, the first protestor to have been convicted, sentenced, and hanged was killed by the regime for having blocked a road and injured a member of the Basij.[27]
[27] >
Alternatively, the applicant is also liable to face harm by way of military authorities taking extrajudicial measures against him, which would also amount to serious harm. I note that there is considerable evidence that the Iranian military does not shy away from torture and other forceful means of enforcing compliance, for which the following is just one example:
Security forces used torture to obtain confessions, employed “vague national security charges,” and conducted “grossly unfair” trials that often violated due process, the report claimed. Security force tactics included sexual assault and “forced disappearances” of dissidents.[28]
I have not considered this probable circumstance further as I am focused initially on the harm that the applicant would face arising from the application of state powers.
[28] >
Looking into the reasonably foreseeable future I find that there is a real chance that the applicant will be deployed to a situation during his 18-24 months of service in which he will be required to use his military training whether against Iranian citizens or foreign forces.
While there is evidence of wealthy Iranians paying bribes to avoid military service[29] which would include using their connections to influence deployments, the current circumstances of an Iran on the precipice of war diminishes this possibility for a family who is not an integral part of the system (i.e. holding senior office in one of the relevant security agencies) but rather an appendage that services the system. As such I do not consider it further.
[29] DFAT Country Information Report: Iran, July 2023 at [2.156]
In such a situation his political views against the regime and his different views on religion would clash with the orders from his commanding officers. I accept that free from fear he would not follow through with the orders that may include participation in communal prayer through to firing at protestors. As a result, I accept that he would be charged with ‘disobeying commands’.
I note that there is no evidence available to this Tribunal that indicates any service personnel have been convicted and sentenced to death for disobeying orders. Considering that there is a concerted effort to monitor Iranian human rights violations it is probable that any death would be known but it is possible that the nature of the Revolutionary Courts and military justice, that nothing is known. For the reason of the uncertainty, I accept that his actions could at the most egregious application of the law lead to the applicant facing the death penalty. Noting that the application of the law at this point in time is politically driven, as shown above with the example of the protestor’s death sentence conviction, I find that there is a real chance that the applicant could be used as an example for other dissenting conscripts.
I now turn to consider whether any actions against the applicant that his commanding officers would take could be considered a part of normal disciplinary actions protected by law or whether the protection against such disciplinary actions was to be intentionally omitted in practice and in turn whether the law or the omission is appropriate and adapted to achieving some legitimate object of the country. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs[30] at [29] the majority of the High Court said,
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
[30] Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293
Country information indicates that there is some opposition by senior Islamic scholars about the government’s willingness to charge and convict protestors for the crime of Moharebeh.[31] That there is internal dissent emanating from respected Islamic jurists lends further weight to a view that I have formed of a regime that is under considerable pressure and as such is hyper-sensitive to any threat. It is a government under siege from external and internal forces that has exhibited an apparent willingness to exercise extreme violence against any dissent.
[31] and
In considering whether the death penalty for ‘disobeying commands’ is ‘appropriate and adapted to achieving some legitimate government object’ I consider whether the penalty is appropriate in the sense of proportionate to the ‘crime’.
Discipline in the armed forces and the need to follow orders is an accepted necessity for an effective military to achieve a legitimate government object, but this is not without limits. International law provides for limits when at war and domestic law when at peace. In this instance, Iran being at peace, the authorities have legalised the application of the death penalty against members of the armed forces for certain acts.

But in considering whether it is ‘appropriate’ I turn to consider what the international community has considered as being an appropriate application of the death penalty.
Although the use of the death penalty is present in countries other than Iran, international law deems its use as being only for the most serious crimes:
International Covenant on Civil and Political Rights:
Article 6(2): In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.[32]
[32] International Covenant on Civil and Political Rights (ICCPR)
A statement from the United Nations Economic and Social Council described ‘most serious crimes’ as:
In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.[33]
[33] >
Accepting this interpretation of international law (ICCPR) and the expression of an opinion of its meaning by a major body of the United Nations, I find that the transgressions the applicant would undertake do not amount to the ‘most serious crimes’.
I recognise that there are cultural differences over what amounts to the most serious crime but do not accept that even within the context of different legal systems the act of a serviceman disobeying an order during peacetime could be considered among the most serious of crimes.[34] For this reason, I find that the punishment the applicant faces arises from a law that is not appropriate and adapted to achieving some legitimate government object.
[34] The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the
As such, I am satisfied that the applicant will face serious harm at the hands of his military superiors. I find that the application of such punishment is not a law of general application, but rather discriminatory. It targets the applicant on the basis of his political views and those that could be referred to as religio-political views. Specifically, it is the applicant’s views towards the regime that would lead to him being persecuted by military personnel.
I have also considered whether according to s 36(3) the applicants have a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
To avoid doubt, I have considered whether the applicant’s mental health may impact considerations pertaining to threats arising from insurgents and Islamic extremists. Noting that the harm the applicant fears is not supported by evidence, any mental health condition the applicant bears will not influence this consideration.
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).
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Denis Dragovic
Deputy President

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.
…

Abolition of the Death Penalty, International Bar Association, May 2008

[2024] AATA 1374

2 February 2024

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